Luckie v. Gorsuch

No. CIV-81-573-GLO-RMB (D. Ariz. February 25, 1983)

Upon four motions to reconsider, the court dismisses federal claims against a state administrator arising out of allegedly improper handling of an asbestos dump. The court first rules that a state with an approved Resource Conservation and Recovery Act (RCRA) implementation plan operates under state, not federal, law and thus is not subject to a RCRA § 7002 citizen suit for failure to perform a non-discretionary duty. The court then holds that it lacks federal question jurisdiction, since any damage to plaintiffs' property caused by state action was in the nature of a nuisance governed by state tort law, not inverse condemnation governed by federal constitutional law. The court holds that plaintiffs have no federal cause of action against defendant under the Clean Air Act because once a state has an approved implementation plan, the Act is enforced through state, not federal, law.Also, the plaintiffs have no cause of action under the Comprehensive Environmental Response, Compensation, and Liability Act because it allows neither citizen suits nor injunctions against state officials. Finally, the court declines to certify its decision for interlocutory appeal.

Counsel are listed at 13 ELR 20400.

[13 ELR 20406]

Bilby, J.:

Order

Four Motions To Reconsider have been filed. Both parties request this Court to reconsider its Order of October 14, 1982, regarding jurisdiction over state Defendant Sarn (Director of the Arizona Department of Health Services).

Sarn asks for reconsideration of the Resource Conservation and Recovery Act claims (under the citizen suit provisions, RCRA, § 6972(a)(2)), requesting they be dismissed. In addition, Sarn asks this Court to dismiss federal question jurisdiction, pursuant to 28 U.S.C. § 1332.

Plaintiffs also request reconsideration of the denial of claims under the Clean Air Act, 42 U.S.C. § 7401 et. seq., and the Comprehensive Environmental Recovery, Compensation and Liability Act, 42 U.S.C. § 9601 et. seq. Plaintiffs seek to reinstate these claims against Defendant Sarn.

A. Sarn's Motion To Reconsider

1. RCRA

In their Second Amended Complaint, plaintiffs made a claim under the citizen suit provisions of RCRA. Plaintiffs argue a claim existed under both RCRA, § 6972(a)(1), which allows citizen suits against RCRA violators, and § 6972(a)(2), which allows citizens to sue the EPA Administrator for failure to perform "non-discretionary" duties.

In response to motions to dismiss by Sarn, this Court dismissed claims under § 6972(a)(1), but upheld claims under § 6972(a)(2).

In rejecting the claims against the State Defendant Sarn under § 6972(a)(1), this court rejected the expansive reading of Montgomery Environmental Coalition v. Fri, 366 F. Supp. 261 [4 ELR 20182] (D.C.D.C. 1973) [which held citizens may sue a state defendant if the latter "exercised authority which directly or indirectly controls the discharge of the pollutant," and a state's failure to enforce environmental laws is enough to state jurisdiction under § 6972(a). 366 F. Supp. at 266-67]. Instead, this Court adopted the view of two more recent cases: O'Leary v. Moyer's Landfill, Inc. 523 F. Supp. 642 (E.D. Pa. 1981); and Love v. New York State Department of Environmental Conservation, 529 F. Supp. 832 [12 ELR 20571] (S.D.N.Y. 1981). Both cases held that a state, to be liable under § 6972(a)(1), must be "the instrumentality discharging pollution." O'Leary, supra, 523 F. Supp. at 648.

However, in denying the Motion to Dismiss the RCRA claims against Sarn, this court held the state could be sued under § 6972(a)(2). This section only explicitly allows a suit against the EPA Administrator for failure to perform mandatory duties. However, this court adopted the implicit assumption of O'Leary that the state could be sued in the place of the EPA. Luckie v. Gorsuch, Order, at 17; citing O'Leary, supra, 523 F. Supp. at 648 n.2.

Defendant Sarn now asks this Court to reconsider its ruling of October fourteenth, arguing the O'Leary assumption is mere dicta and not essential to the holding of the case. Plaintiffs argue the state has an agreement with the EPA for the State to perform the enforcement duties of the EPA. Furthermore, plaintiffs allege neither Sarn nor the EPA did anything to enforce the RCRA, such enforcement being a mandatory duty. Since the State was primarily responsible for enforcing the RCRA, plaintiffs argue that they should be allowed to sue the State in place of the EPA administrator.

Upon reconsideration the Court finds there are serious problems in recognizing a cause of action against Sarn under § 6972(a)(2).

The initial problem is pointed out in District of Columbia v. Schramm, 631 F.2d 854 [10 ELR 20520] (D.C. Cir. 1980). Schramm held there was no implicit federal cause of action to review state decisions of a permit application. In particular, Schramm noted FWPCA provided for state enforcement of the act. However, the state is not delegated authority to enforce FWPCA directly. Rather the state must provide a plan which provides the essential enforcement mechanism through its own state laws. Schramm concluded "Congress must have intended that states apply their own laws in deciding controversies involving state permits." Id. at 863.

This analysis applies equally in determining the relationship between the State of Arizona and the EPA in enforcing the RCRA. Arizona is not delegated authority to enforce RCRA directly. RCRA, like FWPCA, envisions a system where the EPA [13 ELR 20407] enforces RCRA. However, the state can take over this function, if it adopts a state implementation plan (SIP) (a separate set of state environmental laws) subject to the approval of the EPA.

While it is alleged that Arizona has such a plan,¹ its responsibilities to enforce a solid waste program stem, not from RCRA, but from state law. RCRA merely gives Arizona the authority to regulate Solid Waste Management through its own laws, provided it establishes a system of enforcement comparable to the RCRA system. If Arizona fails to enforce its plan, the EPA is required to notify the state, and if the situation is not corrected "the Administrator shall withdraw authorization of such a program and establish a Federal Program. . . ." 42 U.S.C. § 6926(e) (emphasis added). The language of this section indicates a mandatory EPA duty enforceable under § 6972(a)(2).

The plaintiffs argue that Chesapeake Bay Foundation v. Virginia State Water Board, 495 F. Supp. 1229 [11 ELR 20058] (E.D. Va. 1980) helps their cause. It does not. Chesapeake Bay Foundation held there was jurisdiction to sue the state and seek review of the issuance of a permit by a state board. Jurisdiction was said to exist under 28 U.S.C. § 1331. However, the court also held there was no implied cause of action to sue the state, using the same reasoning of Schramm, see Chesapeake Bay Foundation, supra, 495 F. Supp. at 1236.

Thus, plaintiffs have adequate remedies to enforce a state plan, other than the citizen suit provisions of RCRA, § 6972(a)(2). Plaintiffs can sue the state under Arizona Law. Alternatively, they can sue to require the EPA to notify the state of its failure to implement the state plan, and if that fails, withdraw EPA approval.

Even assuming the state can be sued in the place of the EPA, there is another problem. This Court's order regarding claims against EPA holds the EPA's duty to enforce the RCRA is a discretionary one.The duty to issue a compliance order or commence a civil action is within the prosecutorial discretion of the EPA Administrator. If the state stands in the place of the EPA, it too, would have discretion in enforcing the RCRA. On the other hand, if some duty is mandated by state law, it would appear that the plaintiffs should look to the state courts for relief.

Therefore, Defendant Sarn's Motion to Reconsider is GRANTED and the RCRA claims are DISMISSED.

2. Constitutional Questions

Defendant Sarn requests this court to reconsider the granting of federal question jurisdiction pursuant to 28 U.S.C. § 1331. This section confers jurisdiction on federal district courts over suits arising under the constitution, laws and treaties of the United States. To bring a case within § 1331, a "plaintiff must have a substantial claim founded directly upon federal law." Hagdorn v. Union Carbide Corporation, 363 F. Supp. 1061, 1068 (N.D.W. Va. 1973), citing Gully v. First National Bank, 299 U.S. 109, 112 (1936). Plaintiffs' claims against Defendant Sarn, pursuant to RCRA, CAA and CERCLA, have been dismissed as they have not stated a valid constitutional claim.

a. Federal Common Law

The October 14 Order rejected the federal common law theory of nuisance as precluded by Middlesex County Sewage Authority v. National Sea Clammers Assoc., 453 U.S. 1 [11 ELR 20684] (1981) [federal statutes presented a comprehensive scheme for the regulation and abatement of water pollution and were meant to preempt federal common law claims]. These claims remain dismissed.

b. Due Process

Plaintiffs allege Defendant Sarn's failure to comply with federal and state statutes caused plaintiffs' property to lose its entire value. This, plaintiffs argue, amounted to a taking of their property in violation of the fifth and fourteenth amendments.

Similar claims were rejected in Sun Enterprises, Ltd. v. Train, 394 F. Supp. 211 (S.D.N.Y. 1979); Love v. NYDEC, supra, 529 F. Supp. at 832. In Sun Enterprises plaintiffs claimed state and local government actions approved a development, but failed to protect downstream property. This was said to amount to an unconstitutional taking of property. The court rejected the argument. It was the developers' actions that caused the damage to plaintiffs property, not the acts of the governmental entitites. The court noted "none of the state permits challenged here by plaintiff could be said to authorize or encourage the private defendant to cause damage to plaintiff's property." 394 F. Supp. at 221.

This court dismissed the due process claims based upon Sarn's failure to enforce state and federal environmental statutes. It is not the failure to enforce these laws that caused the damage to plaintiffs' property, but the alleged acts of the private defendants. See Luckie v. Gorsuch, Order at 33-34.

However, a constitutional claim was recognized against Sarn based upon his alleged negligence in undertaking remedial action (demolition and decontamination of the asbestos mill and site). Defendant Sarn was alleged to have caused direct harm to plaintiffs, a situation distinguishable from Sun Enterprises.

Upon reconsideration of this claim, the allegations against Sarn regarding his remedial actions amount to a tort claim, not an inverse condemnation action.

Inverse condemnation is a cause of action against a governmental defendant to recover the value of property taken in fact even when there has been no formal exercise of eminent domain by the taking agency. United States v. Clark, 445 U.S. 253, 257 (1980). In this case, plaintiffs' property has not been taken. In fact, the defendants are not alleged to have interfered with plaintiffs' possession in any way. The allegations do indicate that defendants' actions amount to a tortious injury of plaintiffs' properrty, with a consequent decrease in value. However, a decrease in property value is insufficient to transform a total claim into an inverse condemnation claim. Cf. Pamel Corp. v. Puerto Rico Highway Authority, 621 F.2d 33 (1st Cir. 1980).

There being no constitutional claim stated against defendant Sarn, and since all other claims under federal law have been dismissed, there is no jurisdiction under 28 U.S.C. § 1331.

B. Plaintiffs' Motion to Reconsider

1. CAA

The plaintiffs seek reconsideration of this Court's order which denied jurisdiction over CAA claims.Plaintiffs' pleadings allege that new information has been discovered which indicates the EPA has delegated primary responsibility for enforcing the CAA to Defendant Sarn, and the Arizona Department of Health Services, citing 47 Fed. Reg. 43055, 43060 (9/30/80); 47 Fed. Reg. 46086-87 (10/15/82).

In rejecting the CAA claims against Sarn, this court recognized the state could be sued in place of the EPA under CAA, § 7604(a)(2) [allowing suits against the EPA for failure to perform a mandatory duty]. Luckie v. Gorsuch, Order at 24-25, citing O'Leary, supra, 523 F. Supp. at 648 n.2. Nevertheless, this court dismissed the CAA claims since the plaintiffs failed to allege a state plan existed, or that Arizona was in any way responsible for enforcement of Clean Air Laws. Id. The plaintiffs argue now they have evidence to cure this defect.

However, this CAA claim must still be dismissed for the reasons stated in the reconsideration of the RCRA claims. Arizona is not delegated authority to enforce the RCRA itself. Instead, the state must develop a state plan, including a statutory scheme subject to EPA approval. It is through these state laws that Sarn is to protect Arizona's environment. Hence, the rights of plaintiffs against Sarn stem, not from the RCRA, but from state law.

Thus, the plaintiffs' Motion to Reconsider is DENIED, and the CAA claims are DISMISSED.

2. CERCLA

Plaintiffs request this court reconsider its order dismissing the claims against the state under CERCLA. Plaintiffs allege Arizona has signed a cooperative agreement with the EPA regarding enforcement and administrative duties under CERCLA. The plaintiffs also allege that guidelines, published pursuant to this agreement, set forth various mandatory duties.

Even if this is so, the CERCLA claim must be dismissed. The allegations made in the Motion to Reconsider do not change the [13 ELR 20408] nature of the CERCLA cause of action. Several cases have held there is no injunctive relief available under CERCLA. See McCastle v. Rollins Environmental Services, 514 F. Supp. 936 (M.D. Va. 1981); Bartlett Landfill, Inc. v. Comford, No. 80-C-5785 (N.D.Ill. 1981). CERCLA only recognizes claims for damages against the violators of CERCLA provisions. Plaintiffs do not allege that Sarn or the ADHS are violators liable under CERCLA, and even if they had, plaintiffs are prevented from recovering damages by the eleventh amendment. Finally, CERCLA does not make provisions for citizen suits. (See Order dismissing CERCLA claims against the EPA Administrator).

Therefore, plaintiffs Motion to Reconsider is DENIED; CERCLA claims against Defendant Sarn remain DISMISSED.

C. Interlocutory Appeal

The Motion to Certify this Action for Interlocutory Appeal is DENIED.

1. Sarn argues that this plan is not yet effective, i.e., only Sarn's signature appears on the agreement. In addition, Sarn argues the agreement is only an interim state plan. However, these are question of fact for later determination, either at trial or motion for summary judgment. For now, this Court must accept the plaintiffs' allegations of the existence of a valid EPA state-approved state plan as true.