Luckie v. Gorsuch

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

The court dismisses claims that the Governor of Arizona failed to perform duties mandated by the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) regarding an asbestos waste site. The court holds that it has no jurisdiction over state officials under the citizen suit provisions of RCRA. Alternatively, the court holds that contrary to plaintiffs' claim, RCRA imposed no duty on the Governor to petition the Environmental Protection Agency to list asbestos as a hazardous waste. The court rules that CERCLA provides no jurisdiction over state officials, nor does it allow citizen suits, nor would it allow the injunctive relief plaintiffs request. The court thus grants the Governor's motion to dismiss.

Counsel are listed at 13 ELR 20400.

[13 ELR 20408]

Bilby, J.:

Order

Defendant Babbitt, Governor of Arizona, brings this Motion to Dismiss the action against him. Plaintiffs have made four claims against him; one under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et. seq., and three claims under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. In particular, plaintiffs claim Governor Babbitt:

1. Failed to petition the EPA to list asbestos as a hazardous waste. RCRA, § 6921(c).

2. Breached his fiduciary duty by failing to bring suit against individual and corporate defendants to recover costs and damages.

3. Failed to consult with the President of the United States to seek remedial action.

4. Failed to establish procedures to press claims against the superfund.

RCRA

Plaintiffs argue their RCRA claim can be maintained under the citizen suit provisions of the RCRA, § 6972(a).

Section 6972(a)(1) allows citizens to file an action against a violator of the RCRA. However, jurisdiction under this section is limited to claims alleging violation of any "permit, standard, regulation, condition, requirement or order which has become effective pursuant to this Act." § 6972(a)(1). Failure to petition the EPA is not such a violation.

Section 6972(a)(2) allows citizens to sue the EPA administrator for failure to perform mandatory duties. Plaintiffs argue RCRA, § 6921(c), imposes a mandatory duty upon the governor to petition the EPA to list asbestos as a hazardous waste. Since Defendant has failed to perform this duty, plaintiffs contend the Governor can be sued under § 6972(a)(2), in the place of the EPA.

However, this court has ruled that there is no jurisdiction to sue a state defendant under § 6972(a)(2). See Luckie v. Gorsuch, Order regarding Motions to Reconsider.

Even if such jurisdiction exists, Defendant Babbitt's "duty" to petition the EPA is discretionary. A governor may petition the EPA to list a material as hazardous waste. RCRA, § 6921(c). The use of the word "may" denotes discretion, unless the context of the usage or the legislative history suggest otherwise. Burlin v. Morton, 527 F.2d 486 (9th Cir. 1976); Kock Refining Co. v. U.S. Dept. of Energy, 504 F. Supp. 593 (D. Minn. 1980). The legislative history indicates the duty is a discretionary one. See 1976 U.S. CODE CONG. AND ADMIN. NEWS, 6294, ["Subsection (c) permits the governor of any state to petition the administrator to identify or list a discarded material as hazardous." Id. (Emphasis added)].

Therefore, this claim is dismissed.

CERCLA

This court does not have jurisdiction over Defenant Babbitt under CERCLA. Liability is limited to owners or operators of facilities discharging hazardous waste, or disposers or transporters of such wastes. See City of Philadelphia v. Stepan Chemical Company, 544 F. Supp. 1135 [12 ELR 20915] (E.D. Pa. 1982). It is not alleged that the Defendant falls within any of these categories.

Furthermore, CERCLA, unlike the CAA or RCRA, does not contain any citizen suit provisions. Nor does CERCLA provide for injunctive relief. McCastle v. Rollins Environmental Services, 514 F. Supp. 936 (N.D. La. 1981); Bartlett Landfill, Inc. v. Comeford, 80-C-5785 (N.D. Ill. January 27, 1981).

The claims under CERCLA are DISMISSED.

Defendant's Motion to Dismiss is GRANTED.