Palumbo v. Waste Technology Industries

No. 92-0072-W(S) (N.D. W. Va. October 9, 1992)

The court denies motions by companies constructing and proposing to operate a hazardous waste incinerator in Ohio to dismiss claims by West Virginia's citizens under the Resource Conservation and Recovery Act (RCRA) and common law challenging the incinerator's construction and operation. The court first grants the plaintiffs' motion to amend their complaint to add the director of the West Virginia Department of Environmental Protection as a plaintiff, to add language for jurisdiction and liability under RCRA, and to correct the name of a partner of one of the defendants. The court also grants the plaintiffs' supplemental motion to amend the complaint to assert an independent ground for subject matter jurisdiction under RCRA § 7002(a)(1)(A). The court holds that the defendants failed to demonstrate how they would be unfairly prejudiced by the court granting the motions to amend the complaint. The court holds that it will consider any submissions by the defendants concerning the motions to amend as supplements to their motions to dismiss the original complaint.

The court holds that it has subject matter jurisdiction under RCRA § 7002(a)(1)(B) to review claims against the companies, because a jurisdictional basis for suit under RCRA § 7002 exists in situations where there are allegations that a person's acts or omissions may present an imminent and substantial endangerment to health or the environment. The court holds that it has personal jurisdiction over the companies, because the plaintiffs made a prima facie case under West Virginia's long-arm statute. The imposition of personal jurisdiction does not offend traditional notions of fair play and substantial justice, because the companies established an office in West Virginia to provide brochures, pamphlets, and similar publications to interested members of the public on the construction and eventual operation of the incinerator. Also, the companies' conduct and connection with West Virginia are such that they should reasonably anticipate being haled into court there. The court holds that the companies' due process rights have been satisfied, because they have purposefully directed their activities toward West Virginia. The court also holds that the plaintiffs have sufficiently alleged venue in both their complaint and amended complaint. The court holds that the West Virginia attorney general has standing to bring suit under RCRA § 7002(a) in a parens patriae capacity, because it is reasonable for a proper public official such as the attorney general to bring such suits in that manner, and Congress did not limit that right by its statutory language. The court next holds that the city of Chester, West Virginia, has properly filed its complaint and amended complaint, even though the city did not sign the complaint, because the attorney general and members of his office signed the complaint and amended complaint as counsel for the city. The court holds that if this issue becomes a matter of great concern, it will conduct a hearing and consider whether further amendment of the pleadings is necessary or desirable.

On the substantive issues, the court holds that the plaintiffs' complaint and amended complaint state claims on which relief may be granted for violations of RCRA's permitting requirements. The court dismisses the plaintiffs' claim that the U.S. Environmental Protection Agency (EPA) and the Ohio Environmental Protection Agency (OEPA) failed to conduct a proper floodplain/wetland assessment in violation of an executive order, because an alleged failure to comply with the executive order is not enforceable against federal agencies by private entities. The court also dismisses the plaintiffs' claim that EPA violated the National Environmental Policy Act (NEPA) by not preparing an environmental impact statement. Such NEPA requirements need not be met because of RCRA's comprehensive regulatory scheme. Thecourt denies the companies' motion to dismiss the plaintiffs' claim of common-law nuisance, because the plain language of RCRA indicates Congress' intent to leave untrammeled the right of an individual to invoke principles of statutory or common law in damage actions pendant to RCRA's claims. The court further holds that this claim is ripe for review.

The court next holds that it lacks subject matter jurisdiction over RCRA's claims against EPA, because RCRA § 7002(a)(1)(B) does not permit RCRA's citizen suits against EPA where EPA merely performed, or allegedly failed to perform, certain regulatory functions under RCRA. Further, there is no claim that EPA was directly involved in waste management. Also, there is no basis for a claim that EPA failed to perform any act or duty that is not discretionary. The court also holds that it lacks subject matter jurisdiction over RCRA's claims against the OEPA, because it acted in its regulatory capacity and is not a contributor to any imminent and substantial endangerment created by the companies. Also, the federal question statute does not give the court jurisdiction over claims against the OEPA. Finally, the court holds that the plaintiffs did not state a claim on which relief may be granted against the OEPA for common-law nuisance, because the plaintiffs' complaint and amended complaint do not assert a nuisance claim against the OEPA.

Counsel for Plaintiffs
William Hill, Ass't Attorney General
Attorney General's Office
State Capitol, Rm. 26-E, Charleston WV 25305
(304) 558-2021

Counsel for Defendants
Randolph Wiseman, Charles Waterman
Bricker & Eckler
100 S. Third St., Columbus OH 43215
(614) 227-2300

[23 ELR 20415]

Stamp, J.:

Memorandum of Opinion and Order

On April 21, 1992, plaintiffs Mario J. Palumbo, Attorney General of West Virginia as parens patriae of Certain Citizens of West Virginia and the city of Chester, West Virginia ("plaintiffs") filed this civil action for injunctive and declaratory relief against defendants Waste Technologies Industries, an Ohio partnership ("WTI"), Von Roll (Ohio), Inc., a Delaware corporation ("Von Roll"), Energy Technology, Inc., an Ohio corporation ("Energy Technology"), Waste Technologies Incorporated, an Arkansas corporation ("Waste Technologies"), Environmental Elements Corporation, a Delaware corporation ("Environmental Elements"), the Ohio Environmental Protection Agency ("Ohio EPA"), and the United States Environmental Protection Agency ("U.S. EPA"). This civil action basically challenges the commencement and operation of a hazardous waste incineration plant located along the Ohio River in East Liverpool, Ohio. The 36-page complaint asserts claims under statutes, regulations, and common law. Plaintiffs assert that: WTI has or is presently constructing and proposes to operate its incinerator without a permit as required by federal law; WTI has unlawfully transferred the responsibility of the operation of the incinerator without required Agency approval; the Resources Conservation and Recovery Act (RCRA) permit issued to WTI is invalid since Columbiana County Port Authority (CCPA), the owner of the land, has not signed the required application for the permit; certain state permits issued to WTI should be revoked because they are not in compliance with federal statutes; the court should declare that new standards be established since the original permits issued to WTI reportedly indicate that the existence and operation of the incinerator facility in its present location will cause a threat to human health and the environment; the court should declare classifications of any proposed changes to WTI's permit are modifications which require that WTI's permit be considered by the Ohio Hazardous Waste Facility Bond (HWFB) for further review; the court should declare that WTI, Ohio EPA, and the U.S. EPA relied upon inaccurate data, when the permits were issued; the court should declare that the Ohio EPA and the U.S. EPA failed to conduct a proper Flood Plain/Wetland assessment as required by federal regulation; this court should declare that the location and operation of the hazardous waste incinerator by WTI constitutes a public nuisance; and that the court should issue both a preliminary and permanent injunction relating to the various matters and claims for relief set forth in the complaint. Defendants WTI, Von Roll, Energy Technology, Waste Technologies, and Environmental Elements (collectively, the "WTI Defendants"), defendant Ohio EPA, and defendant U.S. EPA have each filed motions to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b).

Further, separate motions to intervene in this civil action have been filed pursuant to Fed. R. Civ. P. 24 by the city of Pittsburgh, Save Our County, Let's Improve Valley Environment, Inc., as well as 20 individual intervenors (Allison, Archer, McKinnon et al.).¹

On August 26, 1992, plaintiffs filed a motion for preliminary injunction and temporary restraining order to which responses were made by the various defendants. On September 1, 1992, this court conducted a partial hearing upon these motions. On that date the parties, following a status conference with the court and a review of these matters, entered into a stipulation by which the parties essentially agreed to a maintaining of the status quo.² After reviewing this proposed stipulation with the parties, the court set this matter for a hearing on plaintiffs' motion for a preliminary injunction for October 13, 1992.

On August 26, 1992, plaintiffs filed a motion to amend the complaint to add the state of West Virginia by David C. Callaghan in his official capacity as director of the Division of Environmental [23 ELR 20416] Protection and to articulate more specifically its cause of action under the RCRA. A supplemental motion to amend was filed on September 3, 1992, seeking to add an additional paragraph 11 to the proposed amended complaint as an independent ground of subject matter jurisdiction, a citation to 42 U.S.C. § 3972(a)(1)(A) of RCRA. The various defendants have filed responses to these motions by which they oppose the various motions to amend the complaint.

A. Motion to Amend

Plaintiffs seek to amend the complaint to add the state of West Virginia by David C. Callaghan in his official capacity as director of its Division of Environmental Protection, as a party plaintiff. The motion to amend improperly identified Callaghan as the director of the Division of Environmental Protection when the correct agency is the Department of Environmental Protection. However, the proposed amended complaint makes the correct identification as to Callaghan's department. While plaintiffs believe that Palumbo, as Attorney General of the state of West Virginia, has standing and authority to bring this suit, the plaintiffs seek to add Callaghan as director of the Division of Environmental Protection of the state of West Virginia as a party plaintiff in order to remove any question as to the standing of the plaintiffs to bring this suit. Plaintiffs seek to add Callaghan "as a precautionary measure." Plaintiffs further seek to add language throughout the complaint in order to "more fully articulate its cause of action under RCRA." That amendment is sought in order to provide both the jurisdictional basis and a source of substantive liability. Plaintiffs further seek to amend the complaint to correct the name of one of the current partners of WTI which is Environmental Elements (Ohio), Inc. Finally, by a supplement to its motion to amend, it seeks to add a paragraph 11 to the amended complaint to assert an independent ground of subject matter jurisdiction by citing 42 U.S.C. § 6972(a)(1)(A) of RCRA.

Pursuant to a briefing schedule established by this court on September 1, 1992, the various defendants have filed responses to the motion to amend and supplemental motion to amend of plaintiffs. The WTI Defendants have filed a memorandum in opposition to the motion to amend the complaint and an alternate motion to dismiss the proposed amended complaint. In essence, the WTI Defendants assert that the amendment by adding Callaghan should not be granted because the original plaintiffs do not have standing in the first place to bring this action and consequently have no standing to move to amend. They take a similar position with regard to substituting the defendant in this case. The WTI Defendants object to the portion of the motion to amend seeking to add allegations to the RCRA claims claiming that they do not add factual allegations but merely add conclusionary language which would be irrelevant to any determination as to whether the appropriate counts are jurisdictionally or substantively sufficient. The WTI Defendants, in the alternative, ask that if the requested amendments to the complaint are allowed, that this court construe their memorandum as a supplement to their motion to dismiss and that consequently the amended complaint should be dismissed for lack of subject matter jurisdiction, lack of personal jurisdiction, lack of venue, lack of standing by the plaintiffs, and a failure to state a claim upon which relief may be granted.

U.S. EPA has filed with regard to the motions to amend a "Renewed Motion to Dismiss." The U.S. EPA does not appear to oppose the motion toamend but merely reasserts the grounds for its original motion to dismiss. In addition, the Ohio EPA has also filed a renewed motion to dismiss by which it merely opposes the amendments, stating no particular grounds for its opposition.

Fed. R. Civ. P. 15(a) provides that "leave [to amend a complaint] shall be freely given when justice so requires." Defendants have not demonstrated how they would be unfairly prejudiced by the granting of the motion and supplemental motion to amend the complaint. Fed. R. Civ. P. 15 provides the parties with flexibility in presenting their claims and defenses. It assures that cases will be heard on their merits and avoids injustices which sometimes resulted from strict adherence to earlier technical pleading requirements. Foman v. Davis, 371 U.S. 178 (1962). Also, as plaintiffs assert, Fed. R. Civ. P. 15(a) states that a plaintiff has the right to amend a complaint once "as a matter of course" anytime before a responsive pleading is served. Motions under Rule 12 are not "responsive pleadings." Therefore, the filing of such a motion, by itself, does not bar a plaintiff from thereafter amending the complaint once as a matter of right. Smith v. Blackledge, 451 F.2d 1201 (4th Cir. 1971). Further, Fed. R. Civ. P. 15(c) calls for the relation back of the amendment, permitting it when the claim alleged "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Consequently, the amendments if granted would relate back to the original complaint in this case. The various defendants have in their responses to the plaintiffs' motion to amend and supplemental motion to amend reasserted the grounds for their motions to dismiss and have alleged how the granting of the amendments does not prevent the dismissal of the action under Rule 12(b).

Accordingly, the motion to amend and supplemental motion to amend is GRANTED. Further, this court will construe any submissions made by the various defendants to the motions to amend as supplements to their motions to dismiss the original complaint. In other words, the court will consider the various motions to dismiss as motions to dismiss the amended complaint. The amendments allowed will relate only to those claims and parties that are within the jurisdiction of this action, following this court's ruling on the various motions to dismiss, as set forth below.

B. Motions to Dismiss

1. WTI Defendants

a. Jurisdictional and Procedural Issues

The WTI Defendants first maintain that the complaint and amended complaint must be dismissed for lack of subject matter jurisdiction in that § 6972(a)(1)(B) of RCRA dealing with citizens' suits does not provide for subject matter jurisdiction for the alleged violations.

42 U.S.C. § 6972(a)(1)(B) provides, in part:

(a) In general. Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf —

(1) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the Eleventh Amendment to the U.S. Constitution, and including any present or past generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.

WTI contends, among other things, that because the WTI facility is not yet operational but merely under construction it does not fall within this statute. Further, it maintains that there is no allegation that it has in the past handled, stored, treated, transported, or disposed of any hazardous waste at the facility, or contributed to the same and that it is presently doing so. In various counts in their amended complaint, plaintiffs allege that "[c]onstruction and proposed operation of the hazardous waste incinerator . . . will constitute an imminent and substantial endangerment to the plaintiffs for purposes of 42 U.S.C. § 6972(a)." This court does not read the citizens' suit provisions in the way that the WTI Defendants read it, and believes that a jurisdictional basis for suit exists against owners or operators such as the WTI Defendants in situations like this one in which there are at least allegations that such persons' acts or omissions contribute in such a way that they may present an imminent and substantial endangerment to health or the environment. Therefore, this court believes that it has subject matter jurisdiction over the WTI Defendants. This court further believes that the citizens' suit provision of RCRA under 42 U.S.C. § 6972(a)(1)(B) may also address claims against the WTI Defendants, the alleged violators of the Ohio permit.

The WTI Defendants also claim that this court lacks personal jurisdiction over them. This court believes that the plaintiffs have made a prima facie showing of sufficient jurisdictional basis to survive this challenge under West Virginia Code § 56-3-33, this state's "long-arm" statute. The facts as stated in the complaint and amended complaint support a jurisdictional basis under either § 56-3-33(1)(3)(4) or (6). The WTI Defendants admit in their legal memoranda and through an affidavit that they did establish an office in Chester, West Virginia, in September 1991, for the purpose of providing free brochures, pamphlets, and similar publications to interested members of the public regarding the construction and eventual operation of the [23 ELR 20417] WTI facility. This court believes that such an office was undoubtedly maintained to protect, enhance, or improve the public and business relationships of WTI in the Chester, West Virginia, area and would be the kind of persistent course of conduct from which the WTI Defendants could or should have expected to derive a benefit. Harman v. Pauley, 522 F. Supp. 1130, 1137 (S.D. W. Va. 1981). The imposition of personal jurisdiction upon the WTI Defendants in this case does not offend "traditional notions of fair play and substantial justice." International Shoe Company v. State of Washington Office of Unemployment Compensation and Placement, 326 U.S. 310, 316 (1945). This court believes that the WTI Defendants' conduct and connection with West Virginia as the forum state, by the office in West Virginia, and by the incinerator facility located and to be operated just across the Ohio River from Chester, West Virginia, are such that these defendants "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297 (1980). The WTI Defendants have purposefully directed their activities toward West Virginia, the forum state, and this court believes that their rights of due process have been satisfied.

The WTI Defendants next assert that venue for the RCRA citizen suit is not proper in the Northern District of West Virginia. 42 U.S.C. § 6972(a) clearly provides that "[a]ny action under P(a)(1) shall be brought in the district court for the district in which the alleged violation occurred or the alleged endangerment may occur." Plaintiffs have sufficiently alleged venue in both their complaint and amended complaint.

The WTI Defendants also claim that the West Virginia attorney general lacks standing to sue under the RCRA citizen suit and, further, that he lacks authority under either federal or state law to sue these defendants in a parens patriae capacity. This court does not read RCRA and specifically 42 U.S.C. § 6972(a) as prohibiting such suits from being brought by a state's attorney general in a parens patriae capacity. In fact, it would appear reasonable that a proper public official such as the attorney general would bring such suits in that manner and that Congress did not limit that right by its statutory language. Further, this court does not find that Manchin v. Browning, 170 W. Va. 999, 296 S.E.2d 909 (1982), cited by the WTI Defendants, stands for the proposition that the attorney general cannot be a plaintiff in this type of action. Accordingly, this court finds that the West Virginia attorney general has standing to bring this suit. In their reply brief, the WTI Defendants raise the point that the city of Chester should be dismissed as a plaintiff because the city did not sign the complaint as required by Fed. R. Civ. P. 11 and because there is nothing in the complaint showing that the city of Chester authorized the bringing of this action. U.S. EPA raised the same point in its motion to dismiss and plaintiffs in their reply memorandum assert that the city of Chester has requested the attorney general to represent it "as a matter of economy and convenience" and that the interests of the attorney general and the city are identical. It also appears that the attorney general and members of his office who are admitted to practice in West Virginia have signed the complaint and amended complaint as counsel for the city of Chester. If this becomes a matter of great concern, this court will conduct a hearing and consider whether further amendment to the pleadings is necessary or desirable. Otherwise, this court believes that the city of Chester has properly filed its complaint and amended complaint.

b. Substantive Issues

In addition to its motions on jurisdiction and procedural grounds, the WTI Defendants also allege that all counts of the complaint (Counts I through IX) against them should be dismissed for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

In assessing a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), the court must accept the factual allegations contained in the complaint as true. Advanced HealthCare Services, Inc. v. Radford Community Hospital, 910 F.2d 139, 143 (4th Cir. 1990). Dismissal is appropriate pursuant to Rule 12(b)(6) only if "it appears to be a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proven in support of its claim." Id. at 143-44 (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir. 1969), citing Conley v. Gibson, 355 U.S. 41 (1957)).

Stated another way, it has often been said that the purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or the merits of the case. 5A C. Wright & A. Miller, Federal Practice and Procedure: Civil 2D § 1356, at 294 (1990) (citations omitted). The Rule 12(b)(6) motion also must be distinguished from a motion for summary judgment under Fed. R. Civ. P. 56 which goes to the merits of the claim and is designed to test whether there is a genuine issue of material fact. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to the party making the claim and essentially the court's inquiry is directed to whether the allegations constitute a statement of a claim under Fed. R. Civ. P. 8(a). As many courts have stated, the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted. 5A C. Wright & A. Miller, Federal Practice and Procedure: Civil 2D § 1357, at 321 (1990) (citations omitted). As this district court noted in Williams v. Wheeling Steel Corporation, 266 F. Supp. 651, 654 (N.D. W. Va. 1967), "the plaintiff's burden in resisting a motion to dismiss for failure to state a cause of action is a relatively light one."

This court has reviewed the complaint and amended complaint and believes that as to the WTI Defendants, following the above standards for reviewing motions under Fed. R. Civ. P. 12(b)(6), they state a claim upon which relief may be granted as to Counts I, II, III, IV, V, VI, and VII.

With regard to Count VIII, this court agrees with the WTI Defendants that an alleged failure to comply with Executive Order No. 11988 is not enforceable against federal agencies by private entities. Watershed Associates Rescue v. Alexander, 586 F. Supp. 978 (D. Neb. 1982). This court will, therefore, grant the WTI Defendants' motion to dismiss for failure to state a claim as to the alleged violation of Executive Order No. 11988. To the extent that plaintiffs would further contend that the National Environmental Policy Act (NEPA) and its regulations at 40 C.F.R. § 6 require an environmental impact statement, this court would find, in line with State of Alabama ex rel. Siegelman v. U.S. EPA, 911 F.2d 499, 505 [21 ELR 20107] (11th Cir. 1990), that such NEPA requirements need not be met because of RCRA's comprehensive regulatory scheme. Accordingly, Count VIII is dismissed as to the WTI Defendants for failure to state a claim upon which relief may be granted.

Finally, the WTI Defendants assert that Count IX must be dismissed because the federal common law of nuisance has been preempted by RCRA and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Alternatively, the WTI Defendants state that, even if a common-law nuisance claim were available, no nuisance claim will prevail where construction of the facility has not been completed and, when completed, will operate in compliance with U.S. EPA and Ohio EPA requirements. Plaintiffs contend that RCRA does not preempt any nuisance claim and, further, that any such claim is ripe for review under the statute.

18 U.S.C. § 6972(f), dealing with RCRA, provides in pertinent part that:

Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or requirement relating to the management of solid waste or hazardous waste, or to seek any other relief. . . .

This court has first analyzed this section and the position of the parties in the light of the Supreme Court's decision in City of Milwaukee v. Illinois and Michigan, 451 U.S. 304 (1981) [11 ELR 20406] (Milwaukee II), as well as United States v. Waste Industries, Inc., 734 F.2d 159 [14 ELR 20461] (4th Cir. 1984).

In United States v. Waste Industries, Inc., supra, Judge Sprouse wrote:

City of Milwaukee, however, disapproved only of the courts' use of federal common law as a source for setting regulatory standards independent of those established by a comprehensive statutory scheme. The Court did not assail Congress' prerogative to empower the courts to apply common-law principles as part of an ongoing regulatory scheme.

In addition, this court finds the analysis of Judge Doumar in Allied Towing v. Great Eastern Petroleum Corp., 642 F. Supp. 1339 (E.D. Va. 1986), to be both useful and instructive. The court in Allied Towing, supra, in construing § 6972(f) of RCRA (as well as a similar [23 ELR 20418] provision in CERCLA) found that the plain language of the RCRA statutory provision (and the CERCLA provision) indicated a congressional intent "to leave untrammeled the right of an individual to invoke principles of statutory or common law in damage actions pendant to CERCLA or RCRA claims." The court in Allied Towing, supra, noted that both the majority and minority reports of the House of Representatives of Congress, in adopting the Hazardous and Solid Waste Amendments of 1984, read the language of § 6972(f) as confirming the right of an individual to "bring other claims pendant to his RCRA claim subject, of course, to the court's discretion." This court agrees with the ruling in Allied Towing, supra. This court further finds that the claim under Count IX is ripe for review. Accordingly, the motion to dismiss Count IX of the complaint and amended complaint is denied.

2. U.S. EPA

Defendant U.S. EPA has moved, under Fed. R. Civ. P. 12(b), to dismiss all claims against it for lack of jurisdiction, or in the alternative, for failure to state a claim upon which relief may be granted.

The claims asserted against U.S. EPA are found in Counts IV through VIII of the complaint and amended complaint.

U.S. EPA contends that this court lacks subject matter jurisdiction for several separate reasons. First, U.S. EPA claims that the attorney general of West Virginia lacks standing to sue U.S. EPA, as parens patriae and the city of Chester has failed to satisfy the requirements of Fed. R. Civ. P. 11. For the reasons stated by this court in response to a similar claim by the WTI Defendants, this court finds that these contentions are without merit. Next, U.S. EPA asserts that plaintiffs have failed to allege any jurisdictional statute which waives sovereign immunity with respect to any of their claims. It points out that the RCRA citizens' suit provision relied upon by plaintiffs, 42 U.S.C. § 6972(a)(1)(B), which authorizes suits against any person who is "contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent or substantial endangerment to health or the environment" does not include suits against U.S. EPA for its regulatory activities. It further contends that the other bases for jurisdiction alleged by plaintiffs, the federal question statute, 28 U.S.C. § 1331, and the Declaratory Judgment Act, 28 U.S.C. § 2001, do not waive sovereign immunity.

U.S. EPA also states that a portion of Count IV and Count VII against U.S. EPA, which challenge the 1985 RCRA permit for the WTI facility are subject to dismissal as being filed untimely and in the wrong court, since 42 U.S.C. § 6972(b) authorizes judicial review of permit actions by any interested person within 90 days of permit issuance in the United States court of appeals for the circuit in which the person resides (i.e. in this case, the Fourth Circuit). Further, U.S. EPA maintains that part of Count IV and Counts VI and VII against U.S. EPA, which raise claims regarding permit modification and revocation, should be dismissed because plaintiffs have failed to exhaust their administrative remedies. Finally, U.S. EPA alleges that Counts VI and VII against U.S. EPA should be dismissed because the RCRA citizens' suit provision does not authorize judicial review of discretionary U.S. EPA actions dealing with permit modification and revocation. As stated above, U.S. EPA also asserts under Rule 12(b)(6) that the applicable counts in the plaintiffs' complaint fail to state a claim upon which relief may be granted.

Plaintiffs have responded to each of the allegations of U.S. EPA, both jurisdictional and substantive, contending that U.S. EPA's motion is without merit. With regard to the jurisdictional issue of whether this court has subject matter jurisdiction to decide plaintiffs' claims against U.S. EPA under the RCRA citizens' suit provision, the federal question statute, or the Declaratory Judgment Act, plaintiffs maintain that the RCRA statute itself invokes a waiver of sovereign immunity by U.S. EPA in this particular case because U.S. EPA has affirmatively contributed to the substantial and imminent endangerment of the plaintiffs. Plaintiffs state that U.S. EPA's actions go beyond the mere failure to take enforcement action but, rather, that it "directed and approved illegal plans and activities, and in doing so, has contributed to the endangerment of the plaintiffs" (Memorandum in Response to United States EPA's Motion to Dismiss p. 13).

First, this court does not read 42 U.S.C. § 6972(a)(1)(B) as permitting RCRA citizens' suits against U.S. EPA merely where it has performed, or allegedly failed to perform, certain regulatory functions under RCRA. This court does not believe that the allegations of the complaint and amended complaint against U.S. EPA bring it outside of its role as a regulatory agency and bring it into the role of an agency that has somehow "contributed" to the imminent and substantial endangerment to health and the environment. There is no claim that U.S. EPA was directly involved in waste management, as it would be if this were a federally owned or operated facility. The only way that this court can read the counts against U.S. EPA is that it somehow acted improperly in its regulatory activities and this type of action or inaction under the statute, its legislative history, and the cases construing the statute, cannot give rise to a claim against U.S. EPA, including but not limited to even the most liberal construction of the terms "has contributed or . . . is contributing to." Ringbolt Farms Homeowners Ass'n v. Town of Hull, 714 F. Supp. 1246 (D. Mass. 1989).

Further, it is noted in the briefs of the plaintiffs and U.S. EPA that 42 U.S.C. § 6972(a)(2) authorizes suits against the Administrator of U.S. EPA for an alleged failure to perform any act or duty which is not discretionary (i.e. is mandatory) with the Administrator. This court finds nowhere in the complaint or amended complaint that plaintiffs have specifically asserted that U.S. EPA is in violation of 42 U.S.C. § 6972(a)(2). Rather, their claims, while alleging a violation of 42 U.S.C. § 6972(a) really relate to 42 U.S.C. § 6972(a)(1), the "imminent and substantial endangerment" subsection. Nevertheless, the regulations cited by plaintiffs in their claims against U.S. EPA do not appear to this court to form a basis for a claim that U.S. EPA failed to perform any act or duty which is not discretionary.

Accordingly, for reasons cited above, this court finds that it does not have subject matter jurisdiction over plaintiffs' claims against U.S. EPA and grants U.S. EPA's motion to dismiss on that basis. Since this court lacks subject matter jurisdiction over U.S. EPA under RCRA, there is no basis for jurisdiction under the federal question statute or the Declaratory Judgment Act. Since this court has dismissed all counts against U.S. EPA on the basis of sovereign immunity and lack of jurisdiction under either 42 U.S.C. § 6972(a)(1) or (2), it does not address the remaining jurisdictional matters raised by U.S. EPA or its claim that the complaint or amended complaint fail to state a claim upon which relief may be granted.

3. Ohio EPA

Ohio EPA has filed a motion to dismiss the complaint as to it on the basis that, under Fed. R. Civ. P. 12(b), there is lack of subject matter and personal jurisdiction and that the complaint fails to state any claims against it upon which relief may be granted. The plaintiffs have responded to this motion. Further, Ohio EPA has filed a renewed motion to dismiss the complaint including any amendments thereto.

With regard to subject matter jurisdiction, Ohio EPA contends that the claims against it which pertain to Ohio air and hazardous waste permits do not present a federal question. Further, Ohio EPA contends that it cannot be sued under any of the provisions of RCRA. Plaintiffs respond by indicating that its claims are based on federal law and are brought under 42 U.S.C. § 6972(a)(1)(B).

The claims against Ohio EPA appear to be set forth in Counts I through VIII. For reasons given by this court in dealing with the motion to dismiss of U.S. EPA for lack of subject matter jurisdiction, a claim against Ohio EPA under 42 U.S.C. § 6972(a)(1)(B) cannot be sustained on jurisdictional grounds because it is clear that Ohio EPA, like U.S. EPA, is acting (or failing to act) in its regulatory capacity and is not a "contributor" to any imminent and substantial endangerment brought about by WTI Defendants, if such is shown to be the case. Moreover, this court does not believe that 28 U.S.C. § 1331, the federal question statute, gives jurisdiction to this court over claims against Ohio EPA. In this connection, this court believes that the principles set forth in Department of Energy v. Ohio, 503 U.S. , 112 S. Ct. 1627, 118 L. Ed. 2d 255 (1992), are applicable with regard to whether plaintiffs' claims based on Ohio EPA's permitting and other regulatory process "arise under federal law." Here, as in Department of Energy, supra, the complementary relationship between state and federal law does not support plaintiffs' claims that their Counts I through VII "arise under federal law." See also State of California v. United States Department of the Navy, 845 F.2d 222 [18 ELR 20863] (9th Cir. 1988).

While Ohio EPA has raised and the parties have briefed the [23 ELR 20419] question of whether plaintiffs may assert a nuisance claim against Ohio EPA under Count IX, the issue as drawn by the parties is whether the common law of nuisance has been preempted or subsumed by RCRA. While this court believes that no such preemption has taken place, it has previously found that, with regard to both U.S. EPA and Ohio EPA, that this court has no subject matter jurisdiction over the RCRA claims. Therefore, any claim against either agency would be a pendant claim since there is no federal claim against Ohio EPA. This court would decline to consider a public nuisance claim against Ohio EPA under pendant jurisdiction. Moreover, in reviewing the complaint and amended complaint, this court cannot find, even through a liberal construction of those pleadings, that plaintiffs even assert a nuisance claim against Ohio EPA or U.S. EPA. Therefore, as to Count IX, this court finds that that count fails to state a claim upon which relief may be granted as to the Ohio EPA.

Based upon the above findings which deal with subject matter jurisdiction, this court does not address the remaining points raised by Ohio EPA and dealing with lack of personal jurisdiction and failure to state a claim under Counts I through VIII upon which relief may be granted.

Conclusion

For the reasons set forth above:

(1) Plaintiffs' motions to amend the complaint, insofar as they apply to claims and parties remaining in light of the court's rulings on the various motions to dismiss, are GRANTED.

(2) The motion to dismiss of WTI Defendants is DENIED, except as to Count VIII which is GRANTED as to those defendants for failure to state a claim upon which relief may be granted.

(3) The motion to dismiss of U.S. EPA for lack of jurisdiction over the subject matter is GRANTED.

(4) The motion to dismiss of Ohio EPA for lack of jurisdiction over the subject matter is GRANTED, as is its motion to dismiss Count IX for failure to state a claim upon which relief may be granted.

IT IS SO ORDERED.

The clerk is directed to transmit certified copies of this order to counsel of record herein.

1. The parties by stipulation have agreed that responses and briefings to the various motions to intervene may be filed within 20 days following any ruling by this court denying the above mentioned motions to dismiss.

2. In this stipulation the parties agreed as follows:

1. The WTI Defendants will give written notice to the court and counsel for all parties seven (7) days before bringing any hazardous waste to the WTI East Liverpool site and commencing any incineration at the site;

2. Defendants, by entering into this stipulation, are not in any way conceding that this court has jurisdiction over the subject matter or personal jurisdiction over any defendants in this action;

3. Nothing herein will be construed to limit the authority of Ohio EPA and U.S. EPA from taking any regulatory or other actions regarding WTI; and

4. Nothing herein is intended to expand or limit any parties' rights to contest any actions taken by any other party.