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Interfaith Community Org. v. AlliedSignal, Inc.

ELR Citation: 26 ELR 21551
Nos. No. 95-2097 (AJL), 928 F. Supp. 1339/(D.N.J., 04/25/1996)

The court holds that on-going remediation efforts at a former chemical production site do not preclude a Resource Conservation and Recovery Act (RCRA) §7002(a)(1)(B) citizen suit against the chemical manufacturer's successor and the site's current owners. The New Jersey Department of Environmental Protection and the successor entered into an administrative consent order (ACO) requiring the successor to conduct a remedial investigation and feasibility study (RI/FS). The court rejects defendants' contention that because the state administrative efforts are similar enough to a federal administrative effort to qualify as a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §106 or RCRA §7003 order, the ACO bars the citizen suit under §7002(b)(2)(B)(iv). Nothing in the language of CERCLA §106 or in interpretative case law indicates that state administrative actions should be deemed equivalent to a CERCLA §106 order. And although state actions performed under a §3006 authorized hazardous-waste program have the "same force and effect as an action taken by the Administrator," this provision does not apply to RCRA §7003 because §§3006 and 7003 are not in the same subchapter. Further, RCRA §7002(b)(2)(C)(iii) does not bar the suit because the RI/FS was conducted solely under state law. The court next holds that the case is ripe for review, because the amended complaint is based on actual and long-standing contamination that may be presenting a harm to human life and the environment. The court dismisses the citizens' RCRA §7002(a)(1)(A) claim alleging that defendants "continue to store and/or dispose" of hazardous waste without RCRA permits. Chemical production at the site ended in 1954 and the U.S. Environmental Protection Agency (EPA) has consistently taken the position that RCRA permits are not required for inactive hazardous-waste disposal sites that stopped accepting hazardous waste before RCRA was enacted. Further, a permit is not required for waste leaching into the groundwater and a nearby river, because EPA only requires RCRA permits at facilities where hazardous waste is intentionally placed into or on land or water after the statute's enactment. And EPA's approach to RCRA permits for facilities closed before the statute's enactment is reasonable. The court then holds that a Federal Water Pollution Control Act permit is not required for the leaching waste. The citizens failed to allege an actionable "discharge" as defined under the New Jersey national pollution discharge elimination system permit program. Under the program, a discharge is defined as a new release from a contained area, and the program does not provide for penalties for continued leaching from waste disposed of before the enactment of the New Jersey Water Pollution Control Act.

Counsel for Plaintiffs
Bruce J. Terris, Carolyn S. Pravlik
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendants
Jeffrey B. Gracer
Lowenstein, Sandler, Kohl, Fisher & Boylan
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700