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Is RCRA Enforceable by Citizen Suit in States With Authorized Hazardous Waste Programs?

September 1993

Citation: ELR 10536

Author: Adam Babich

Editors' Summary: RCRA allows EPA to authorize any state that has a qualified hazardous waste program to operate its program in lieu of the federal RCRA hazardous waste (subchapter III) program. When a state has received such authorization, questions arise as to whether the state program suspends portions of RCRA, and whether RCRA citizen suit enforcement of the state's hazardous waste regulations against regulated entities is permissible. Resolving this intersection of federal and state law is crucial to the ability to prosecute RCRA citizen suits, because many state hazardous waste laws do not provide for such enforcement. This Comment addresses the use of RCRA § 7002(a)(1)(A) citizen suits to enforce both federal hazardous waste prohibitions implemented by EPA-authorized state programs and state hazardous waste prohibitions.

This Comment briefly reviews RCRA regulation of hazardous waste and discusses RCRA's federal cooperative scheme. After distinguishing § 7002(a)(1)(A) citizen suits from other RCRA citizen suits, the Comment focuses on the intersection of federal and state law as it pertains to the ability to bring § 7002(a)(1)(A) citizen suits. It first concludes that EPA authorization of state programs does not suspend any portion of RCRA subchapter III. Then, applying a
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 14 ELR 20507, analysis to whether § 7002(a)(1)(A) suits may be used to enforce RCRA and an EPA-authorized state hazardous waste program, the Comment concludes that EPA authorization of a state program does not preclude these enforcement actions. Scrutiny of relevant RCRA provisions and applicable case law reveals that citizens are authorized to bring § 7002(a)(1)(A) suits to enforce RCRA's mandates, regardless of whether it is EPA or an authorized state that implements those mandates.

Mr. Babich is editor-in-chief of the Environmental Law Reporter. Prior to joining the Environmental Law Institute he engaged in a private environmental law practice and was lead plaintiff's counsel on the Sierra Club v. Chemical Handling Corp. litigation discussed in this Comment. Before that, he served as an assistant attorney general with the Colorado Department of Law, CERCLA Litigation Section. He received his J.D. from Yale Law School. The author thanks Ted Sears and Lonni Goldman.

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