Sierra Club v. Chemical Handling Corp.

No. 91-C-1074 (D. Colo. April 8, 1992)

The court holds that to be "in existence" for purposes of obtaining interim status under Resource Conservation and Recovery Act (RCRA) § 3005(e)(1)(A)(ii), a facility's operations must be lawful as well as ongoing. An environmental group brought a RCRA § 7002(a)(1)(A) citizen suit against a company that stores and imports hazardous waste and blends such waste into fuel. The U.S. Environmental Protection Agency (EPA) authorized the state to regulate much of the hazardous waste at issue, but subsequent to that authorization, EPA revised the federal regulations governing toxicity characteristic (TC) waste. The state had determined that the company would not need a RCRA permit for certain activities involving waste storage but, subsequently, the state changed its determination and informed the company that a permit was required. A state court entered a consent decree between the state and the company providing that the facility had RCRA interim status, that the company would refrain from certain waste management practices, and that state denial of the company's permit application would render the consent decree void. Following the environmental group's filing of its citizen suit against the company in federal district court, the state denied the company's permit application and the state and a local government filed additional lawsuits against the company in state courts.

The court first grants the environmental group's motion for voluntary dismissal of its allegations concerning certain RCRA regulations that are the subject of the state's newly filed lawsuit in state court. The court denies the company's request for attorneys fees and dismisses the claim without prejudice. Next, the court rules that the environmental group has standing to prosecute the citizen suit, based on affidavits that establish factual allegations that the court had previously held, in 22 ELR 20108 (1991), were sufficient to establish standing. Next, the court grants the company summary judgment on the environmental group's allegations of RCRA violations with respect to waste regulated by the state pursuant to § 3006(b), because the relevant portions of the federal RCRA program have been superseded by the state program. In a footnote, the court notes that it takes no position on the group's ability to proceed under RCRA § 7002(a)(1)(A) by alleging violation of the state program.

Next, the court holds that RCRA § 7002(b)(1)(B) does not bar the citizen suit because the state was not diligently prosecuting an action about the issues raised in the environmental group's complaint at the time the suit was filed. The company had announced to EPA a settlement of the state's action before the environmental group filed suit. The court next rules that the company has not established the existence of exceptional circumstances that would cause the court to abstain from exercising federal jurisdiction over the issue of whether the company has interim status to store TC waste. The court next holds that the environmental group is not collaterally estopped by the state court consent decree. The company has conceded that the consent decree is void. Next, the court holds that RCRA § 7002(a) authorizes [24 ELR 20177] an award of civil penalties to the U.S. Treasury in citizen suits for RCRA violations.

The court grants the environmental group summary judgment that the company violated RCRA § 3005 by storing TC waste without a permit or interim status. Although EPA wrote the company a letter stating "[Y]ou have qualified for interim status," interim status is a statutorily conferred, grandfathering status that EPA does not grant or confer. Under long-standing EPA policy, the EPA letter is not a grant of interim status, is not binding on the court, and does not prevent the environmental group from seeking judicial resolution of the issue. The court rules that the company did not obtain interim status as an "existing facility," because the company was storing hazardous waste without a permit or interim status and with knowledge that the state was no longer sanctioning its operation on the effective date of EPA's regulations governing TC waste. The state court consent decree, which stated that the company had interim status, had not yet been entered on the effective date of the TC regulations and has since been rendered void by the state's permit denial. To allow unlawful operations to gain interim status would undermine the "primary intent" of RCRA that operators obtain permits or interim status to store or dispose of hazardous waste.

[Related decisions are published at 22 ELR 20108 (two decisions), [second decision], 23 ELR 20814, and 24 ELR 20180.]

Counsel for Plaintiff
Adam Babich
Environmental Law Institute
1616 P St. NW, Ste. 200, Washington DC 20036
(202) 939-3803

Counsel for Defendant
Phillip S. Figa
Burns, Figa & Will
5251 DTC Pkwy, Penthouse Three, Englewood CO 80111
(303) 796-2626

Carrigan, J.:

Full Text of Opinion

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's first through third claims allege that the defendant is storing hazardous waste at its Broomfield, Colorado, facility without a permit or authorized interim status in violation of 42 U.S.C. § 6925(a). Plaintiff's fourth claim alleges that the defendant violated the container and aisle space provisions of 40 C.F.R. Part 265, Subparts C and I.

Pursuant to Fed.R.Civ.P. 41(a)(2), the plaintiff has filed a motion to dismiss its fourth claim without prejudice. Defendant has responded by requesting that the fourth claim be dismissed with prejudice and that it be awarded its costs and attorneys fees incurred in connection with that claim. Plaintiff has also filed a motion for summary judgment as to standing and liability on its first, second, and third claims. Chemical Handling has responded by cross-moving for summary judgment, arguing that the plaintiff's first three claims are barred by the "diligent prosecution" provision of 42 U.S.C. § 6972(b)(1)(B), and the doctrines of collateral estoppel, mootness, and abstention. In addition, Chemical Handling claims that this court lacks jurisdiction to hear the first and second claims under RCRA because Colorado has an authorized state program.

The parties have fully briefed the issues and oral argument would not be helpful. Jurisdiction is alleged under 42 U.S.C. § 6972(a)(1)(A),¹ 28 U.S.C. § 2201 and 28 U.S.C. § 1331.

I. Factual Background

Chemical Handling is a Colorado corporation that transports, stores, imports, and blends into fuel various forms of waste. The facility is located in Broomfield, Colorado, near business and residential areas. The instant action concerns the alleged storage of hazardous waste without a permit or interim status. The hazardous waste that is the subject of this action is regulated by both the Colorado Department of Health and the Environmental Protection Agency (EPA).

The EPA has authorized Colorado to administer its hazardous waste program "in lieu" of the federal RCRA program. 49 Fed. Reg. 41036 (Oct. 19, 1984). See also 54 Fed. Reg. 20847 (May 15, 1989); 56 Fed. Reg. 21601 (May 10, 1991).² On March 29, 1990, the EPA published revisions to regulations that define the toxicity characteristics of hazardous waste. Following the EPA's regulatory change, wastes that exhibit the characteristics of toxicity are known as TC wastes. On July 13, 1990, Chemical Handling submitted to the EPA a RCRA Part A permit application to store TC waste. In response to that application the EPA sent Chemical Handling a letter stating that Chemical Handling qualified for interim status for TC waste.

Chemical Handling also stores waste that is regulated by the state of Colorado.³ On April 13, 1989, Colorado notified Chemical Handling that, subject to certain conditions, Chemical Handling would not need a RCRA permit to: (1) transport hazardous waste to its facility; (2) blend that waste into hazardous waste fuel within ten days; and (3) store that waste for an additional ninety days before shipping it to an off-site burner. On May 31, 1990, Colorado notified Chemical Handling that Colorado had erred in its April 13, 1989, letter and that, as a transporter of hazardous waste, Chemical Handling could only store waste for ten days without a permit. Colorado allowed Chemical Handling until August 24, 1990, to comply. On August 30, 1990, Colorado issued a compliance order that included violations for the storage of hazardous waste without a permit or interim status.

Thereafter, Chemical Handling filed a lawsuit in the state district court for Jefferson County against Colorado seeking a declaratory judgment that Chemical Handling could blend both solid and liquid waste materials and accumulate blended hazardous waste fuel on-site for ninety days without a permit or interim status. Colorado counter-claimed to enforce its August 30, 1990, compliance order. On November 8, 1990, the state district court issued a preliminary injunction forbidding Colorado from altering its position concerning the 90-day storage limit or interfering with Chemical Handling's solid fuels blending program. Thereafter the parties enteredinto a consent decree. Colorado agreed that as of February 5, 1991, Chemical Handling had interim status for the storage of hazardous wastes. In return, Chemical Handling agreed, inter alia, not to grind solid hazardous wastes for use in hazardous waste fuel. The agreement further provided that Colorado would make a decision regarding Chemical Handling's storage permit by December 31, 1991. Finally, the consent decree stated that if the permit were denied the consent decree would be rendered void.

On June 21, 1991, Sierra Club filed this lawsuit. Plaintiff's first claim alleges that Chemical Handling, as a transporter of hazardous waste, has stored hazardous waste at its facility for longer than ten days without a permit or interim status in violation of 42 U.S.C. § 6925(a). Plaintiff's second claim states that Chemical Handling stored hazardous waste listed at 40 C.F.R. Part 261, Subpart D, without a permit or interim status in violation of 42 U.S.C. § 6925(a). Plaintiff's third claim alleges that Chemical Handling stored hazardous waste listed at 40 C.F.R. Part 261, Subpart C, including TC waste, without a permit or interim status in violation of 42 U.S.C. § 6925(a). Plaintiff's fourth claim asserts that the defendant violated the container and aisle space provisions of 40 C.F.R. Part 265, Subparts C and I.

On December 23, 1991, Colorado denied the defendant's application for a hazardous waste permit. The permit denial became effective thirty days after its issuance. 6 C.C.R. 1007-3, § 100.511(b). Chemical Handling has appealed the decision and has sought a stay pending appeal. 6 C.C.R. 1007-3, § 100.514. When the permit was denied the consent decree entered between Colorado and Chemical Handling was rendered void. Colorado has sued the defendant, alleging [24 ELR 20178] numerous violations of state hazardous waste regulations. Jefferson County has also filed suit against the defendant for operating in a manner that constitutes a public nuisance and for violation of the Jefferson County Zoning Resolution and Building Code.

II. Motion to Dismiss

Pursuant to Fed. R. Civ. P. 41(a)(2), Sierra Club has moved to dismiss voluntarily its fourth claim, for violation of the aisle and space provisions of 40 C.F.R. Part 265, Subparts C and I, because that claim is now the subject of an action filed in state court by the Colorado Department of Health. Chemical Handling has responded by requesting that attorneys fees be awarded and that the claim be dismissed with prejudice.

Plaintiff's motion to dismiss its fourth claim voluntarily and without prejudice is granted. Defendant's requests for costs, attorneys fees and dismissal with prejudice is denied. To the extent the parties seek summary judgment on the fourth claim, their motions are denied as moot.

III. Jurisdiction

A. Standing

The first issue to be addressed is whether Sierra Club has standing to bring this action under 42 U.S.C. § 6972(a)(1)(A). Chemical Handling argues that Sierra Club does not have standing because it has not: (1) identified members who have been injured; (2) provided factual information supporting the alleged diminished use and enjoyment of the neighborhood; (3) alleged facts supporting the relationship between the purported injury; and (4) demonstrated that the relief sought will redress a distinct and palpable injury to an individual member.

The doctrine of standing is grounded in the Article III "case or controversy" requirement. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979). Although Congress may grant a right to sue to those who might otherwise be barred by prudential limitations, a plaintiff must always show a distinct and palpable injury that is likely to be redressed if the requested relief is granted. Id. at 100. RCRA expressly provides for citizen suits. 42 U.S.C. § 6972. However, in order to have standing to sue, a citizen organization must show that at least one of its members has been injured or is threatened with injury. International Union, United Auto, etc. v. Brock, 477 U.S. 274, 281-84 (1986). Injury to aesthetic, conservational, or recreational interests is sufficient. Sierra Club v. Morton, 405 U.S. 727, 735 [2 ELR 20192] (1972).

Sierra Club has provided affidavits from Jean Smith, Peter Wolfe, Debra Kalish, Elizabeth Lynar, Helga Fensterman, and Eugene Demayo. Affiant Smith testifies that her use and enjoyment of the environmental resources in her neighborhood is impaired by the Chemical Handling plant. She further testifies that she is concerned with the effect that Chemical Handling's unpermitted activities are having on the value of her property and on her childcare business. Smith is also annoyed by the chemical odors from the plant. She is worried about the dangers posed to her health and that of her children by the plant's continued operation without a permit. Smith states that her concerns would be lessened if Chemical Handling were forced to halt operations until obtaining a permit. Similar testimony is submitted from Peter Wolfe, Debra Kalish, and Elizabeth Lynar.

These affidavits support the factual allegations in the complaint that this court previously held were sufficient to establish standing. (91-C-1074, Memorandum Opinion and Order (August 1, 1991)). In addition, the affidavit of Eugene Demayo establishes Sierra Club's qualifications to represent its members in this action. The affidavits demonstrate that Sierra Club members visit, live, and own property in the neighborhood where Chemical Handling does business. Furthermore, the affiants' anxiety is reasonable given the conclusion of the West Adams County Fire Protection District and the Jefferson County Sheriff's Department that "this facility and operation at Chemical Handling pose a very significant risk to the community." (Exhibit Q to Sierra Club's response to the defendant's motion for a protective order.) The submitted affidavits from Sierra Club clearly establish that it has standing to prosecute this lawsuit.

B. Authorized State Program

Plaintiff's first two claims, brought pursuant to 42 U.S.C. § 6972(a)(1)(A), allege that, in violation of 42 U.S.C. § 6925(a), Chemical Handling has been storing hazardous waste without a permit or interim status.

This court previously ruled that citizen suits can be brought under RCRA in states, such as Colorado, that have EPA-authorized hazardous waste programs. (Memorandum Opinion and Order August 6, 1991.) Chemical Handling now argues that two developments require dismissal of the first two claims for lack of jurisdiction. First, Sierra Club has decided not to pursue an action for "imminent and substantial endangerment to health or the environment" under 42 U.S.C. § 6972(a)(1)(B). Second, a recent Second Circuit decision, Dague v. City of Burlington, 935 F.2d 1343, 1352-53 [21 ELR 21133] (2d Cir. 1991), declares that state-authorized programs supersede the permit requirements of RCRA under 42 U.S.C. § 6972(a)(1)(A).

RCRA directs the EPA to authorize states to administer hazardous waste regulatory programs that are "equivalent to" and "consistent with" the federal program under subchapter III of RCRA and to carry out their programs "in lieu" of the federal program.⁴ 42 U.S.C. § 6926(b). States are authorized to issue and enforce permits for the storage, treatment, or disposal of hazardous waste. Id. Any action taken by a state under a hazardous waste program authorized by section 6926 of RCRA "shall have the same force and effect as action taken by the Administrator. . . ." 42 U.S.C. § 6926(d).

The EPA has authorized the state of 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). In addition, Colorado regulations specifically authorize issuance of permits and provide a process for obtaining interim status for the activities giving rise to the Sierra Club's first two claims. 6 C.C.R. 1007-3 Part 100.

The violations that Sierra Club alleges are found in subchapter III of RCRA and have thus been superseded by Colorado's state program pursuant to 42 U.S.C. § 6926(b). Lutz v. Chromatex, Inc., 718 F. Supp. 413, 425 [19 ELR 21368] (M.D. Pa. 1989) (Lutz I).⁵

C. Diligent Prosecution Under § 6972(b)(1)(B)

Actions under 42 U.S.C. § 6972(a)(1)(A) are prohibited:

if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance with such permit, standard, regulation, condition, requirement, prohibition, or order.

(Emphasis added.) 42 U.S.C. § 6972(b)(1)(B).

Chemical Handling argues that at the time the plaintiff filed this action, the Colorado Department of Health was litigating against it, in the state district court for Jefferson County, the issues of interim status, storage of hazardous wastes, waste fuel blending, and storage by a transporter. Thus, the defendant contends that these issues as here raised by Sierra Club are precluded by virtue of their inclusion in the Colorado Department of Health litigation.

It is clear that Chemical Handling's interim status to store TC waste was not being litigated when this action was filed by Sierra Club. Moreover, Chemical Handling's counsel announced, by letter to the EPA, settlement of the state court action over three months before this action was filed. (Exhibit J to the plaintiff's response to the defendant's motion for summary judgment; Exhibit B.2 to the defendant's brief in opposition to the plaintiff's motion for summary judgment.) In that [24 ELR 20179] letter, Chemical Handling set forth the substance of what later became the consent decree. The diligent prosecution bar clearly is not intended to apply after a settlement has been reached between the operator of a facility and the state. Accordingly, I conclude that Sierra Club's action is not barred by section 6972(b)(1)(B).

D. Abstention

Chemical Handling argues that this court should avoid a conflict with state policy and the federally authorized Colorado hazardous waste program by adhering to the doctrine of abstention announced in Burford v. Sun Oil Co., 319 U.S. 315, 327 (1943).

Abstention from exercising federal jurisdiction is, in all its forms, "the exception, not the rule." Colorado River Water Conservation District v. United States, 424 U.S. 800, 813 (1976). Abstention is justified only in exceptional circumstances where resort to state proceedings clearly serves an important countervailing interest. Id. Two factors must be analyzed in determining whether Burford abstention is appropriate: first, the presence of a complex regulatory scheme which would be disrupted by federal court review; and second, the existence of a state-created forum with specialized competence in the particular area. Id.

The issue of Chemical Handling's interim status to store TC waste involves application of federal, not state, law. Moreover, Chemical Handling has not shown how the state program would be disrupted by deciding the issue of TC waste interim status. Chemical Handling has not established that exceptional circumstances exist to justify abstention.

IV. Collateral Estoppel

Chemical Handling argues that its state court consent decree with the State of Colorado collaterally estops Sierra Club from asserting its first, second, and third claims. The consent decree states: "the Department agrees that as of February 5, 1991, Chemical Handling has interim status for the storage of hazardous waste. . . ."

Chemical Handling has conceded, however, that the consent decree is void. (Defendant's motion to continue trial or for abstention filed December 27, 1991.) Accordingly, I conclude that Sierra Club is not estopped by the void state court consent decree.

V. Civil Penalties

Chemical Handling asserts that Sierra Club's request for civil penalties is inappropriate in a RCRA citizen suit.

The citizen suit provision of RCRA provides that "[t]he district court shall have jurisdiction . . . to enforce the permit, standard, regulation, condition, requirement, prohibition, or order . . . and to apply any appropriate civil penalties under section 6928(a) and (g) of this title." 42 U.S.C. § 6972(a). Section 6928(g) provides that any person who violates any requirement of this subchapter shall be liable to the United States for a civil penalty in an amount not to exceed $ 25,000 per violation per day.

Section 6972(a) clearly authorizes this court to award to the United States Treasury civil penalties in citizen suits for RCRA violations. See Ohio v. U.S. Dep't of Energy, 904 F.2d 1058 [20 ELR 20953] (6th Cir. 1990).

VI. Summary Judgment on Sierra Club's Third Claim

Plaintiff's third claim alleges that Chemical Handling violated 42 U.S.C. § 6925(a) by storing, without a permit or interim status, hazardous waste listed at 40 C.F.R. Part 261, Subpart C, including TC waste. The parties have filed cross-motions for summary judgment as to that claim.

Summary judgment is proper if the pleadings, depositions, and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), Fed.R.Civ.P. 56(c). When applying that standard the factual record and reasonable inferences from it must be examined in the light most favorable to the party opposing summary judgment. Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir. 1988).

Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the burden of proof at trial. Id. The party opposing a properly supported summary judgment motion may not rest upon mere allegations in the answer, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A factual dispute is material only if, under the governing law, its resolution might affect the action's outcome. A factual dispute is genuine only if a reasonable fact finder could return a verdict for the nonmoving party. Id.

On March 29, 1990, the EPA published revisions to its regulations defining toxicity characteristics of hazardous waste. Those regulations expanded the number of wastes subject to RCRA permitting requirements. The effective date of the EPA's new TC waste regulations was September 25, 1990. 55 Fed. Reg. 11798 (Mar. 29, 1990).

Generally, under RCRA, "storage . . . of any . . . hazardous waste is prohibited except in accordance with . . . a permit." 42 U.S.C. § 6925(a). However, 42 U.S.C. § 6925(e) creates an exception to the permit requirement. That section allows an operator of an unpermitted facility to operate under interim status if: (1) the facility is "in existence" when changes in the law require them to have a permit under this section; (2) the operator complies with the notification requirements of section 6930(a); and (3) the operator has made a timely Part A permit application.

A. Effect of EPA Letter

On July 13, 1990, Chemical Handling submitted to the EPA a RCRA Part A permit application to store TC waste. In response, the EPA wrote:

We hereby acknowledge receipt of your Part A Hazardous Waste Permit Application. . . . [Y]ou have qualified for interim status as an existing facility by obtaining an EPA identification number (in April 1988) and by submitting the Part A application prior to September 25, 1990.

While you form lists many waste codes, it is very important to recognize that your interim status as a newly regulated facility applies only to newly regulated TC wastes (waste codes D004 to D043), which would not have been considered hazardous wastes under the previous Extraction Procedure Toxicity Characteristic [EP] or other waste listings or characteristics.

(Exhibit B to the defendant's brief in support of motion for summary judgment) (emphasis added).

Sierra Club argues that this letter did not confer interim status on Chemical Handling. Moreover, Sierra Club notes that the EPA made no investigation or finding whether the facility was "in existence" within the meaning of RCRA.

The plain language of 42 U.S.C. § 6925(e) does not provide that the EPA has the authority to grant interim status. Indeed, the EPA has consistently recognized that, unlike a permit, interim status is not granted or conferred by the EPA. Rather it is a statutorily conferred grandfathering provision based upon the eligibility criteria set out in 42 U.S.C. § 6925(e). See, e.g., Hempstead County & Nevada County Project v. United States EPA, 700 F.2d 459, 461 [13 ELR 20835] (8th Cir. 1983), 50 Fed. Reg. 49212, 49235, n.124 (Proposed Rule: Nov. 29, 1985); 50 Fed. Reg. 38946 (Sept. 25, 1985); (Exhibit C to the plaintiff's motion for summary judgment).

Courts generally show great deference to interpretations of applicable statutes and regulations by the agency charged with their administration so long as the agency's interpretation is reasonable and consistent with the statute and regulation. See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965). Under long-standing EPA policy and the plain language of RCRA, the EPA letter was not a grant of interim status and it is not binding on this court. The EPA's statement that Chemical Handling has qualified for interim status does not preclude Sierra Club from seeking judicial resolution of that issue.

B. Did Chemical Handling Qualify for Interim Status?

Chemical Handling complied with the notification and Part A application requirements of § 6925(e). Thus the issue to be determined is whether Chemical Handling was an "existing facility" within the meaning of RCRA when changes in the law required them to have a permit to store TC waste.

Section 6925(e) applies to facilities that are "in existence on the effective date of statutory or regulatory changes . . . that render the facility subject to the requirement to have a permit." Under 40 C.F.R. 260.10 a facility "in existence" is defined as one "in operation" (i.e., [24 ELR 20180] actually "treating, storing, or disposing of hazardous waste") or a facility "for which construction has commenced" on the relevant date. When promulgating its TC regulations, EPA noted that:

There are three types of facilities located in authorized states which are affected by today's rule: (1) facilities which are already operating under a RCRA permit, (2) facilities which are already operating under interim status, and (3) facilities which are subject to RCRA permit requirements for the first time as a result of today's rule.

55 Fed. Reg. at 11847.

Sierra Club argues, inter alia, that Chemical Handling did not obtain interim status as an "existing facility" because its operations existing at the time of the new regulations were illegal as a result of its storage of hazardous waste without a permit or interim status. (Exhibit A to Sierra Club's motion for summary judgment — P102-130 of the Colorado Health Department's August 30, 1990, compliance order.)

Chemical Handling concedes that it had been storing hazardous waste prior to the TC regulations. (Second Amended Answer P33.) Moreover, it does not deny that it had stored hazardous at its facility for over ten days without a permit or interim status.⁶ Rather Chemical Handling asserts that its prior storage of hazardous waste was not illegal because it was done pursuant to state approval.

Chemical Handling relies on two documents to support its argument. First, it relies on an April 13, 1989, letter from the Colorado Department of Health stating that Chemical Handling, as a transporter and recycler, did not need a permit to store hazardous waste for up to ninety days. On May 31, 1990, however, the Department notified Chemical Handling that transporters who mix hazardous wastes do not generate a new hazardous waste, and therefore do not qualify for the generator ninety-day accumulation. Thus when the new TC regulations became effective on September 25, 1990, Chemical Handling was aware that the Department had changed its position and that it was acting illegally.

Chemical Handling also relies on the consent decree entered by the Jefferson County District Court on September 12, 1991. As stated above, however, Chemical Handling now concedes that the consent decree was rendered void by the permit denial. In addition, the consent decree had not been entered at the time the new TC regulations subjected Chemical Handling to the permit requirements.

Clearly, at the time the new TC regulations subjected Chemical Handling to the permit requirements, it was not a legally existing facility. It was storing hazardous waste without a permit or interim status and with knowledge that the state was no longer sanctioning its operation. I conclude that in order to qualify as "in existence" when it sought interim status for TC waste, it was necessary that Chemical Handling's operations were then lawful as well as on-going. A contrary result would undermine the primary intent of RCRA — that an operator have a permit or interim status to store or dispose of hazardous waste. I conclude that Chemical Handling did not, and does not, have interim status for the storage of TC waste.

Accordingly, IT IS ORDERED that:

(1) Sierra Club's motion to dismiss its fourth claim is granted;

(2) Sierra Club's motion for summary judgment is granted in part and denied in part;

(3) Sierra Club's motion for summary judgment on the first and second claims is denied;

(4) Sierra Club's motion for summary judgment on the third claim is granted;

(5) Chemical Handling's motion for summary judgment is granted in part and denied in part;

(6) Chemical Handling's motion for summary judgment on the first and second claims is granted;

(7) Chemical Handling's motion for summary judgment on the third claim is denied.

1. Plaintiff alleges in its complaint that jurisdiction exists under § 6972(a)(1)(B). Plaintiff has conceded that jurisdiction is not proper under the "imminent and substantial endangerment" provision of that section. Therefore, Sierra Club's action is limited to the provisions of 42 U.S.C. § 6972(a)(1)(A).

2. Colorado's regulations pertaining to hazardous waste are found at 6 C.C.R. 1007-3. Colorado's hazardous waste regulations are substantially identical to EPA's regulations found at 40 C.F.R. Parts 260-270, and are authorized by the Colorado Hazardous Waste Management Act, Colo. Rev. Stat. §§ 25-15-310 et seq.

3. A RCRA permit application consists of two parts: Parts A and B. Part A includes a description of the processes to be used for treatment, storage, and disposal, and a specification of the hazardous waste to be treated, stored, and disposed. 40 C.F.R. § 270.13. The Part B application is significantly more detailed. 40 C.F.R. § 270.14.

4. Generally courts have held that the EPA may enforce RCRA in states that have authorized state programs. See, e.g., Wyckoff Co. v. Environmental Protection Agency, 796 F.2d 1197, 1201 [16 ELR 20866] (9th Cir. 1986); United States v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 1184-85 [20 ELR 20035] (N.D. Ind.), aff'd, 917 F.2d 327, 332 [21 ELR 20007] (7th Cir. 1990). However, those decisions have been based on 42 U.S.C. § 6928(a). That section expressly authorizes the EPA to bring independent enforcement actions, even in RCRA authorized states. The sole restriction on this authority is that the EPA must notify the state before commencing an action. 42 U.S.C. § 6928(a)(2).

5. Cf. Thompson v. Thomas, 680 F. Supp. 1, 3 [18 ELR 20802] (D.D.C. 1987) ("The EPA has authorized the State of Wisconsin to administer and enforce its own hazardous waste program in lieu of the federal program dealing with hazardous wastes. Thus, the violations which the plaintiff alleges 3M has committed under the federal regulations promulgated under RCRA have been superseded in Wisconsin by the state regulations.")

This opinion takes no position on Sierra Club's ability to proceed under the citizen suit provision of RCRA by substituting violations of the state provisions for the corresponding superseded federal statute. Dague v. City of Burlington, 935 F.2d 1343, 1352-53 (2d Cir. 1991); Lutz v. Chromatex, Inc., 725 F. Supp. 258, 261 [20 ELR 20345] (M.D. Pa. 1989) (Lutz II).

6. Chemical Handling does not contest: (1) that the storage of hazardous waste which originates off-site for over ten days without a permit or interim status is illegal; or (2) that Chemical Handling's blending of hazardous waste into fuels did not change the regulated character of the waste. Chemical Waste Management, Inc. v. United States EPA, 869 F.2d 1526, 1539 [19 ELR 20641] (D.C. Cir. 1989).