ELR Citation: ELR 20458
No(s). C92-0297-P(J) (W.D. Ky. Oct 21, 1993)

The court holds that state administrative enforcement action against the operator of hazardous waste incineration and disposal facilities for operating without a Resource Conservation and Recovery Act (RCRA) permit does not bar a RCRA citizen suit against the operator. The court holds that the citizen suit is not barred by RCRA §7002(b), because state enforcement of a settlement order resulting from the operator's challenge to the state's denial of its permit application constitutes administrative action, rather than diligent prosecution of a court action within the meaning of §7002(b)(1)(B). Moreover, the state has not initiated a court action specifically to require the operator's compliance with those provisions of RCRA that the citizen suit seeks to enforce. The court holds that the U.S. Environmental Protection Agency's (EPA's) issuance of a RCRA §3008(h) order requiring the operator to perform a facility investigation does not bar the citizen suit's "imminent and substantial endangerment" claim under §7002(a)(1)(B). Section 3008(h) orders are not among the enumerated exceptions to §7002's jurisdictional grant, and RCRA structure and legislative history do not indicate that Congress intended §3008(h) orders, as distinct from "imminent hazard" orders, to preclude §7002(a)(1)(B) suits. The court next holds that it has subject matter jurisdiction over claims based on violations of the state's EPA-authorized hazardous waste program, because the claims arise under federal law. The state program supplants RCRA's regulatory permit program, but not the statutory provisions of RCRA. Because those provisions still apply in the state, claims of violations necessarily arise under federal law.

The court holds that the Eleventh Amendment does not bar claims against the state's environmental protection secretary in his official capacity, because the citizens' request for declaratory and injunctive relief under federal law is not a suit against the state. The court holds that it must abstain from considering the suit's RCRA §3005(e) claim that a particular incineration unit is not entitled to interim status, because determining whether the facility is "reconstructed" or "existing" would require significant analysis of state law. The court holds it will exercise jurisdiction over the citizen's remaining claims insofar as its resolution does not require in-depth analysis of state law. The court also holds that pending administrative proceedings do not require dismissal under abstention, ripeness, or primary jurisdiction doctrines, because Congress addressed in RCRA the effect of state administrative proceedings on federal courts' jurisdiction over RCRA citizen suits. Finally, the court holds that res judicata does not bar the suit, because plaintiffs were not parties to the court challenge to the permit denial.

Counsel for Plaintiffs
W. Henry Graddy IV
Reeves & Graddy
110 N. Court St., P.O. Box 88, Versailles KY 40383
(606) 873-1340

Counsel for Defendants
George L. Seay Jr.
Wyatt, Tarrant & Combs
The Taylor-Scott Bldg.
311 W. Main St., Frankfort KY 40601
(502) 223-2104