Jump to Navigation
Jump to Content

Glazer v. American Ecology Envtl. Servs. Corp.

ELR Citation: 26 ELR 20108
Nos. No. 6:94 CV 708, 894 F. Supp. 1029/(E.D. Tex., 06/13/1995)

The court denies a company's motion for summary judgment on citizen suit claims alleging that the company violated the Clean Air Act (CAA) and the Resource Conservation and Recovery Act (RCRA) at a Texas facility. The court first holds that CAA §304(b)(1)(B) and RCRA §7002(b)(1)(B) do not bar plaintiffs' suit for violations they alleged in their first amended complaint that were not identified in the pleadings of a prior suit the state brought against the company. The court also holds that RCRA §7002(b)(2)(C) does not bar plaintiffs' RCRA imminent and substantial endangerment claim, because the state did not bring its action pursuant to §7002(a)(1)(B). Furthermore, the agreed final judgment in the state action, which purportedly resolves "all matters arising out of the facts alleged or which could have been alleged" by the state, is insufficient to support a conclusion that the state "commenced" a civil action to require compliance with a CAA standard, limitation, or order, or a RCRA permit, requirement, or order. The agreed judgment does not support a conclusion that an action was commenced under RCRA §7002(b)(1)(B). Noting that plaintiffs have not had an adequate opportunity to develop their evidence in response to the company's summary judgment motion, the court declines to address the issue of diligent prosecution in relation to those claims and violations to which the state action pertained. Noting that the CAA Amendments of 1990 "reversed" the U.S. Supreme Court's decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation, 18 ELR 20142 (1987), the court holds that plaintiffs may maintain a CAA citizen suit against the company if they sufficiently alleged continuous or intermittent violation of the CAA in such manner as to satisfy §304(a)(1). The court denies the company's summary judgment motion on plaintiffs' CAA claims, because plaintiffs have sufficiently alleged the company's continuous or intermittent violations of the CAA, and a genuine issue is present concerning the continuousness or intermittence of the alleged violations. Summary judgment is also inappropriate because the allegations that do not enumerate multiple violations satisfy the requirement that plaintiffs allege that the violations have been repeated. Furthermore, there is a genuine issue regarding whether these past violations have been repeated. Even though RCRA has not been amended in a manner similar to the CAA, summary judgment is inappropriate on plaintiffs' RCRA claims, because plaintiffs have sufficiently alleged that the company's RCRA violations are continuous or intermittent, and a genuine issue of material fact exists concerning this allegation. The court rejects the company's argument that it lacks jurisdiction over plaintiffs' CAA claims that arose before the effective date of the amendment to §304(a)(1) and are not alleged to have been repeated. The complaint alleges repeated and continuous violations of the CAA and, thus, satisfies the requirements of Gwaltney. Therefore, the court has jurisdiction over this action, regardless of the added grant of jurisdiction under §304(a)(1). Jurisdiction also exists over plaintiffs' claims under the provision of §304(a)(1) regarding past violations that plaintiffs alleged have been repeated.

The court rejects the company's argument that plaintiffs are precluded from bringing suit under §7002(a)(1)(B) in that the company has a valid permit issued in accordance with RCRA. Greenpeace, Inc. v. Waste Technologies Industries, 24 ELR 20103 (6th Cir. 1993), on which the company relies, does not compel the conclusion that because the company holds a valid permit, plaintiffs' §7002(a)(1)(B) claims are barred. Rather, Greenpeace merely precludes an attack on a previous permitting decision. Plaintiffs' §7002(a)(1)(B) claim is not a collateral attack on a previous permitting decision. Instead, it is an attack on the operation of a facility in a manner inconsistent with the permits issued. The court next holds that plaintiffs may enforce the Texas hazardous waste program by bringing a citizen suit under §7002(a)(1)(A). The court holds that if the company desires the court to consider whether the state program is "greater in scope" than the federal program and thus is not enforceable under RCRA, it must file a brief highlighting the appropriate standard to make such determination and specify those portions of the state program that are allegedly broader in scope than the federal program. The court rejects the company's argument that the state implementation plan (SIP) may not be enforced inasmuch as it incorporates emission standards and limitations that are broader in scope than the CAA. The court holds that plaintiffs may enforce the state standards or limitations incorporated into its approved SIP even if such standards are more stringent than federal requirements.

The court holds that CAA §304(b)(1)(A) does not bar plaintiffs' CAA claims noticed on April 27, 1994, because plaintiffs sent this notice more than 60 days before the commencement of this action on September 6, 1994. The claims present in the original complaint that are not identified in the April 27, 1994, notice are barred because notice of them was given less than 60 days before the commencement of the action. The August 2 and 17, 1994, notices, however, are sufficient regarding the claims appearing in the first amended complaint that were not present in the original complaint, because such notices were given more than 60 days before the commencement of the action respecting those claims. The court also holds that plaintiffs' notices are sufficient under 40 C.F.R. §54.3(b). Turning to the notice of plaintiffs' RCRA claims, the court holds that if one of the RCRA claims alleges a violation of subtitle C, plaintiffs need not wait 60 days before filing suit, even though the complaint alleges other RCRA violations as well. Thus, because two of plaintiffs' §7002(a)(1)(A) claims allege subtitle C violations, the court need not reach the issue of whether plaintiffs' imminent and substantial endangerment claim is also brought under subtitle C. All three of these claims are proper, in that notice was given before filing this action, although in some instances the delay period had not elapsed between the notice and the commencement of this action. In addition, plaintiffs' RCRA notices are adequate under 40 C.F.R. §254.3(a). Finally, the court holds that the statute of limitations bars each alleged violation identified in plaintiffs' original complaint that occurred more than five years before proper notice was given on April 27, 1994. And the statute of limitations bars each alleged violation identified in plaintiffs' first amended complaint that was not identified in plaintiffs' original complaint and that occurred more than five years before notice on August 2 and 17, 1994.

Counsel for Plaintiffs
Michael D. Richardson
Arnold, White & Durkee
1900 One American Ctr., 600 Congress Ave., Austin TX 78701
(512) 418-3000

Counsel for Defendants
Herschel T. Crawford
Ramey & Flock
500 First Pl., P.O. Box 629, Tyler TX 75710
(903) 597-3301