Sierra Club v. Chemical Handling Corp.

No. 91-C-1074 (D. Colo. November 16, 1992)

Having previously dismissed portions of a Resource Conservation and Recovery Act (RCRA) citizen suit for alleging violation of RCRA provisions that have been superseded by state law, and having then granted the citizen enforcer's motion to amend its complaint to assert violations of an EPA-authorized state hazardous waste program, the court grants the plaintiff environmental group summary judgment and declares that the defendant violated state and federal law by storing hazardous waste without a permit or interim status.

[Related decisions are published at 22 ELR 20108 (two decisions), [second decision], 23 ELR 20814, and 24 ELR 20176.]

Counsel for Plaintiff
Joshua Epel
Gablehouse & Epel
1050 17th St., Ste. 1730, Denver CO 80265
(303) 572-0050

[24 ELR 20180]

Carrigan, J.:

Order

Plaintiff Sierra Club commenced this action against the Chemical Handling Corporation under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(A), and the Colorado Hazardous Waste Management Act. Colo. Rev. Stat. §§ 25-15-301 et seq. Those allegations concerned the storage of hazardous waste at Chemical Handling's facility at 11811 Upham Street, Broomfield, Colorado.

In an order dated April 8, 1992, I granted Chemical Handling's motion for summary judgment as to Sierra Club's first and second claims which alleged that Chemical Handling had stored hazardous waste at the Broomfield facility without a permit or interim status in violation of 42 U.S.C. § 6925(a). Sierra Club v. Chemical Handling Corp., case no. 91-C-1074 [24 ELR 20176] (D. Colo. April 8, 1992). I held that those claims had been supported by Colorado's hazardous waste program. Id. slip op. at 10. A judgment reflecting that order was entered on April 13, 1993.

Sierra Club moved to amend its complaint seeking, inter alia, a declaration, pursuant to 28 U.S.C. § 2201, that Chemical Handling had violated 42 U.S.C. § 6925(a), Colo. Rev. Stat. § 25-15-308(1)(b) and 6 C.C.R. 1007-3, Part 100 by storing, without a permit or interim status, hazardous wastes listed at 40 C.F.R. Part 261, Subpart D and 6 C.C.R. 1007-3, Part 261, Subpart D (including wastes listed at § 261.31 under hazardous waste numbers F001, F002, F003, and F005) and hazardous waste exhibiting the characteristics set forth at 40 C.F.R. Part 261, Subpart C and 6 C.C.R. 1007-3, Part 261, Subpart C.¹ It also moved for summary judgment on the amended complaint.

In an order dated February 17, 1993, I granted Sierra Club's motion to amend, holding that a citizen suit brought pursuant to 42 U.S.C. § 6972(a)(1)(A) could be maintained for a violation of a state hazardous waste program. Sierra Club v. Chemical Handling Corp., case no. 91-C-1074 [23 ELR 20814] (D. Colo. Feb. 17, 1993). I also ordered Chemical Handling to file an answer to the amended complaint and a response to the motion for summary judgment within twenty days after that date. Id. slip op. at 6. Chemical Handling has done neither.

Sierra Club's first and second claims under the amended complaint both allege that Chemical Handling stored hazardous waste at the Broomfield facility without a permit or interim status in violation of 42 U.S.C. § 6925(a), Colo. Rev. Stat. § 25-15-308(1)(b) and 6 C.C.R. 1007-3, Part 100. Those claims, however, anticipate different defenses.

The first claim alleges that Chemical Handling is a transporter storing hazardous waste at a facility for more than ten days. Chemical Handling does not deny storing hazardous waste for more than ten days without a permit or interim status. See April 8, 1992, Order at 17-18. The second claim alleges that Chemical Handling does not have interim status. Again, I have already determined that Chemical Handling has never qualified for interim status. Id. at 19.

Accordingly, IT IS ORDERED that:

[24 ELR 20181]

(1) Plaintiff's motion for summary judgment is granted;

(2) Judgment shall enter for the plaintiff and against the defendant on the plaintiff's first and second claims for relief;

(3) The court declares that Chemical Handling's Broomfield facility never qualified for interim status for storing hazardous wastes that exhibit the characteristics set forth at 40 C.F.R. Part 261, Subpart D and 6 C.C.R. 1007-3, Part 261, Subpart D;

(4) The court declares that Chemical Handling's Broomfield facility never qualified for interim status for storing hazardous wastes that exhibit the characteristics set forth at 40 C.F.R. Part 261, Subpart C and 6 C.C.R. 1007-3, Part 261, Subpart C;

(5) The court declares that the defendant Chemical Handling violated 42 U.S.C. § 6925(a), Colo. Rev. Stat. § 25-15-308(1)(b) and 6 C.C.R. 1007-3, Part 100 by storing without a permit or interim status hazardous wastes listed at 40 C.F.R. Part 261, Subpart D and 6 C.C.R. 1007-3, Part 261, Subpart D (including wastes listed at § 261.31 under hazardous waste numbers F001, F002, F003, and F005) and hazardous waste exhibiting characteristics set forth at 40 C.F.R. Part 261, Subpart C and 6 C.C.R. 1007-3, Part 261, Subpart C; and;

[sic] (4) An amended judgment shall be entered accordingly.

1. Because the Sierra Club's proposed order refers only to declaratory relief, it appears that the claims for injunctive relief and civil penalties mentioned in the amended complaint have been abandoned.