Sierra Club v. Chemical Handling Corp.

No. 91-C-1074 (D. Colo. February 17, 1993)

The court holds that an environmental group may bring a citizen suit under § 7002(a)(1)(A) of the Resource Conservation and Recovery Act (RCRA) against a corporation for alleged violations of the Colorado hazardous waste program, which does not contain a citizen suit provision, because the state program was authorized by the U.S. Environmental Protection Agency (EPA) under RCRA. The environmental group originally brought this action seeking injunctive and declaratory relief, and civil penalties under RCRA for the corporation's alleged storing of hazardous waste at its Bloomfield, Colorado, facility without a permit or interim status in violation of RCRA § 3005(a). However, subsequent to the group's suit, Colorado amended its law and received authorization to operate a hazardous waste program under RCRA, which superseded the group's complaint. Thereafter, the environmental group filed motions to amend its complaint to allege violations of the Colorado hazardous waste program and for reconsideration.

The court first denies plaintiff's motion for reconsideration of the court's earlier ruling granting the chemical corporation summary judgment on the grounds that the environmental group's claims have been superceded by Colorado law. The court next grants plaintiff's motion to amend its complaint. Although the amendment is outside the deadline set for amending pleadings, it will not prejudice the defendant because the defendant has had notice of the nature of the plaintiff's claims since the filing of the complaint. The court holds that because Colorado's hazardous waste program was authorized by RCRA and became "effective" pursuant to RCRA, the citizen suit provision of RCRA § 7002(a)(1)(A) applies. EPA has adopted this interpretation of RCRA. In granting interim and then final authorization to Texas' hazardous waste program, EPA stated that a RCRA citizen suit may be brought after a state has received authorization to operate its program in lieu of the federal program. Moreover, this interpretation is supported by the important role that citizen suits play in enforcing RCRA.

[Two previous decisions in this litigation are published at 22 ELR 20108 [ [second opinion].]

Counsel for Plaintiff
Joshua B. Epel
Gablehouse & Epel
1050 17th St., Ste. 1730, Denver CO 80265
(303) 844-3433

Counsel for Defendant
Norman W. Higley
Burns, Figa & Will
5251 DTC Pkwy., Penthouse 3, Englewood CO 80111
(303) 796-2626

[23 ELR 20814]

Memorandum Opinion and Order

Carrigan, J.:

Plaintiff Sierra Club commenced this action against the defendant Chemical Handling Corporation seeking injunctive and declaratory relief as well as civil penalties under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq. Plaintiff alleges that the defendant stored hazardous waste at its Broomfield, Colorado facility without a permit or interim status in violation of 42 U.S.C. § 6925(a). In a prior order Chemical Handling was granted summary judgment on the Sierra Club's first and second claims on the grounds that those claims have been superseded by Colorado law. Sierra Club v. Chemical Handling Corp., 91-C-1074, Memorandum Opinion and Order at 10 (April 8, 1992).¹

Sierra Club has filed: (1) a motion to amend its complaint to allege violations of the Colorado hazardous waste program, Colo. Rev. Stat. § 25-15-308(1)(b) and 6 C.C.R. 1007-3, Part 100; and (2) a motion for [23 ELR 20815] reconsideration or, in the alternative, summary judgment on the amended complaint. Chemical Handling has not responded to either motion. The State of Colorado has filed an amicus curiae brief which has been considered by the court.

The issues have been fully briefed and oral argument would not assist decision. Jurisdiction is alleged to exist under 42 U.S.C. § 6972(a)(1)(A), 28 U.S.C. § 2201 and 28 U.S.C. § 1331.

Motion to Amend Complaint

Plaintiff has filed a motion to amend its complaint pursuant to Fed. R. Civ. P. 15. In its amended complaint, the Sierra Club alleges that the defendant has violated the Colorado Hazardous Waste Management Act, Colo. Rev. Stat. § 25-15-308(1)(b), and 6 C.C.R. 1007-3 Part 100, by storing hazardous waste without a permit or interim status.

Leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Here, although the amendment is outside the deadline set for amending pleadings, it will not prejudice the defendant. Defendant has had notice of the nature of the plaintiff's claims since the filing of the complaint.

Neither the Colorado Hazardous Waste Management Act, nor the regulations adopted pursuant to that Act, contain a citizen suit provision. As a result, the most serious question regarding the amended complaint is whether RCRA's citizen suit provision may be used to enforce statutes and regulations promulgated under a state's authorized hazardous waste program.²

Section 6972(a)(1)(A), 42 U.S.C., provides that "any person may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this Act." (Emphasis added.) The question then is whether Colorado's hazardous waste program became effective pursuant to RCRA.

RCRA directs the EPA to authorize states to administer hazardous waste regulatory programs that are "equivalent to" and "consistent with" the federal program and to carry out their programs "in lieu" of the federal program. 42 U.S.C. § 6926(b). States are authorized to issue and enforce permits for the storage, treatment or disposal of hazardous waste. Id.

Colorado has promulgated regulations, pursuant to the Hazardous Waste Management Act, Colo. Rev. Stat. §§ 25-15-301 et seq., that specifically provide for the issuance of permits and prescribe the process for obtaining interim status for the storage of hazardous waste; activities that are the basis of the Sierra Club's first two claims. 6 C.C.R. 1007-3 Part 100. The EPA has authorized Colorado to administer its hazardous waste program "in lieu" of the federal program. 49 Fed. Reg. 41036 (Oct. 19, 1984). See also 54 Fed. Reg. 20847 (May 15, 1989); 56 Fed. Reg. 21601 (May 10, 1991).

I conclude that because Colorado's hazardous waste program was authorized by RCRA, it also became "effective" pursuant to RCRA, and therefore the citizen suit provision of section 6972(a)(1)(A) applies. Lutz v. Chromatex, Inc., 725 F. Supp. 258, 261 [20 ELR 20345] (M.D. Pa. 1989) (Lutz II); but see, Dague v. City of Burlington, 935 F.2d 1343 [21 ELR 21133] (2d Cir. 1991).

The Environmental Protection Agency (EPA) has adopted this interpretation of RCRA. In granting interim and then final authorization to Texas' hazardous waste program the EPA stated, in response to concerns regarding an absence of a citizen suit provision, that a RCRA citizen suit may be brought under section 6972 after a state has received authorization to operate its program in lieu of the federal program. Lutz, 725 F. Supp. at 261-62; 45 Fed. Reg. 85016 (Dec. 24, 1980); 49 Fed. Reg. 48300 (Dec. 12, 1984). Courts generally show great deference to interpretations of applicable statutes and regulations by the agency charged with the administration of a particular program as long as the agency's interpretation is reasonable and consistent with the statute. See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965).

This interpretation is further supported by the important role that citizens['] suits can play in the enforcement of RCRA. The EPA must classify cases in order to maximize its scarce enforcement resources. There are some violations that, by necessity, may not be pursued aggressively. However, a RCRPA [sic] violation is only "small" to one who does not live near the offending hazardous waste facility. Indeed, the instant action is a testament to Congress' wisdom in recognizing that those who live in close proximity to hazardous waste facilities often are the most diligent enforcers of RCRA's mandates.

Under the plain language of RCRA, as supported by the EPA's interpretation and the important role citizen suits play in RCRA enforcement, Colorado's hazardous waste program was authorized and became effective pursuant to RCRA. As a result, a citizen suit pursuant to Section 7002 is proper. Therefore, I conclude that the plaintiff's motion to amend its complaint should be granted. Defendant shall file an answer to the amended complaint, and a response to the motion for summary judgment, within twenty days.

Accordingly, IT IS ORDERED that:

(1) Plaintiff's motion to file an amended complaint is granted;

(2) Plaintiff's motion to reconsider is denied; and

(3) Defendant shall file an answer to the amended complaint and a response to the motion for summary judgment within twenty days after this order's date.

1. Plaintiff has moved for reconsideration of that decision. Reconsideration may be justified when there is a need to correct clear error or prevent manifest injustice. Shields v. Shelter, 120 F.R.D. 123, 126 (D. Colo. 1988). Although the preemption issue presents a difficult question, I am not convinced that my prior decision was in error. See also Dague v. City of Burlington, 935 F.2d 1343, 1352-53 [21 ELR 21133] (2d Cir. 1991); Lutz v. Chromatex, Inc., 718 F. Supp. 413, 425 [19 ELR 21368] (M.D. Pa. 1989) (Lutz I). As a result, the plaintiff's motion for reconsideration of that portion of the April 8, 1992, Memorandum Opinion and Order will be denied.

2. In its prior order this court expressed no opinion whether the plaintiff could proceed under the citizen suit provision of RCRA by substituting violations of the state provisions for the corresponding superseded federal statute. Sierra Club, 91-C-1074, Memorandum Opinion and Order at 10 n.5.