RCRA Citizen Suit Dismissed under CERCLA’s Pre-Enforcement Bar after Defendant Agrees with EPA to Clean up Site

In a case of first impression, a district court judge has dismissed a citizen’s suit brought under the Resource Conservation and Recovery Act (“RCRA”) after the defendant entered into an Administrative Order on Consent (“AOC”) with the EPA to clean up the site under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Citing CERCLA’s pre-enforcement bar, District Court Judge Wayne R. Anderson of the Northern District of Illinois held in River Village West LLC v. Peoples Gas Light and Coke Co.[1] that the AOC served to bar the citizen’s suit as a challenge to a remedial or removal action being supervised by the EPA, despite the fact that the AOC was negotiated and signed years after the RCRA case was originally filed.

Factual Background

In 2005 and 2006, two different plaintiffs sued the Peoples Gas Light and Coke Co. (“Peoples”) under RCRA,[2] seeking injunctive relief to abate an alleged “imminent and substantial endangerment to health or the environment.” The contamination the plaintiffs sought to have abated was associated with eight former manufactured gas plants located along the Chicago River.[3]

In June 2007, more than two years after the RCRA case was filed, Peoples entered into an AOC with the EPA under which Peoples agreed to implement removal actions at eleven different manufactured gas plants, including the eight that were the subject of the litigation. Following entry of the AOC, Peoples moved to dismiss the RCRA claims against it, relying on CERCLA’s pre-enforcement bar (§ 113(h), 42 U.S.C. § 9613(h)) to argue that the RCRA litigation constituted a “challenge” to an ongoing enforcement action by EPA, and that the court was therefore without jurisdiction to consider it.

RCRA Citizen Suits and Jurisdictional Bars under RCRA and CERCLA

As with many federal environmental statutes, RCRA authorizes private citizens to file suit demanding compliance with RCRA’s performance standards and the abatement of “imminent and substantial endangerments to public health and the environment” in the absence of government enforcement.[4] The RCRA citizen suit provision is different, however, from those contained in the Clean Water Act or CERCLA because, under RCRA, citizen’s suit plaintiffs are not required to allege past violations of RCRA’s substantive provisions, but instead can allege a future “imminent and substantial” harm, which they can then ask the court to order the defendant to take action to avoid.

Like CERCLA, RCRA has a jurisdictional bar that precludes citizen enforcement of the statute if the EPA administrator has entered into an AOC and the party responsible for the pollution is “diligently conducting a removal action,” though the bar prohibits suits only with respect to the scope and duration of the AOC.[5] Judge Anderson’s characterization of this provision was that “[w]hile RCRA gives citizens the power of enforcement, it very clearly revokes that power in cases where the government is acting.”[6] By contrast, CERCLA’s citizen suit provision (42 U.S.C. § 9659) is subject to a broader prohibition – § 113(h) provides that the federal courts lack jurisdiction to hear challenges to any removal or remedial action initiated under § 104, or to review any AOC issued pursuant to § 106(a).

The Effect of CERCLA’s Jurisdictional Bar

The River Village case presented two questions for resolution: First, may a defendant rely on CERCLA’s pre-enforcement bar to justify dismissal of citizen’s suit brought under RCRA; and second, will the answer to the first question change if the RCRA litigation is brought before the AOC is entered?

Judge Anderson disposed of the first question summarily, noting that a number of courts previously have applied § 113(h) to bar lawsuits attacking actions undertaken by EPA pursuant to CERCLA’s enforcement provisions.[7] The cases relied on by the district court included cases in which § 113(h)’s bar was applied to citizen suits brought under RCRA.[8]

The Timing Question – Will Section 113(h) Bar Suits Initiated Prior to an AOC?

On the second question, the plaintiffs offered a strict reading of RCRA’s citizen’s suit provision, 42 U.S.C. § 6972(a), and argued that such suits should be allowed to proceed, so long as they were filed prior to the negotiation of an AOC: “an AOC may bar a RCRA endangerment action only under the narrow conditions when such order is dated before the citizen suit, and only as to the AOC’s scope and duration.”[9] The plaintiffs also argued that § 113(h) did not override RCRA, citing case law in which courts had concluded that “Congress did not intend a CERCLA response action to bar a RCRA enforcement action.”[10]

The plaintiffs also sought to persuade the court of the equities of their case, noting that the scope of the AOC only required testing of the sites, not active remediation, and that even the required testing had no definitive time frame.[11] They also argued that dismissal of their action would discourage other citizens from proceeding under RCRA: “If a RCRA defendant could bar a citizen suit by simply approaching EPA to enter into an AOC after the RCRA suit was filed, citizens would lose their incentive to file suit.”[12]

The court was unmoved by these arguments:

Plaintiffs provide no support, nor does it seem that any exists, for their contention that RCRA bars only those actions filed after an AOC has been entered with the EPA. As Defendant rightly notes in its brief, this case is one of first impression. However, assuming chronology is determinative and jurisdiction over the current litigation exists under RCRA, there is still the issue of whether CERCLA § 113(h) divests this Court of jurisdiction over the present litigation. A plain language reading of § 113(h) demonstrates that the provision makes no reference to the timing issues presented by Plaintiffs and speaks in general terms of the inability of federal courts to hear challenges to removal or remedial actions.[13]

The court relied on an analogous decision from EPA v. City of Green Forest,[14] where the Eighth Circuit held that § 113(h) barred a citizen suit brought under the Clean Water Act that attempted to challenge an EPA cleanup initiated after the lawsuit had been filed.[15] Finding the decision in City of Green Forest persuasive, the court read § 113(h) as indicating the intent of Congress to authorize citizen suits “only when the government failed to exercise its power under RCRA.”[16]

The court likewise rejected the plaintiffs’ argument that the litigation could proceed because it sought enforcement that went beyond the scope of the AOC, finding that “§ 113(h) precludes any challenge to an AOC, not just those which delay the AOC.… The AOC specifically requires that the Defendant, under the supervision of the EPA, investigate and work to correct any imminent or substantial endangerment present at eleven sites along the Chicago River.… Plaintiffs are essentially asking this Court to impose the same requirements that EPA has already initiated.”[17] Consequently, Judge Anderson granted the motion to dismiss the plaintiffs’ RCRA citizen suit claims.

Conclusion

Although the issue presented by River Village West is one of first impression, the district court was able to rely on appellate decisions which confirmed its view that CERCLA § 113(h) could serve as a bar to RCRA citizen suits. The district court was also able to find other appellate authority (albeit under the Clean Water Act) sustaining the position that the CERCLA pre-enforcement bar applied, even where an AOC was entered into following the initiation of RCRA citizen suit litigation. Given that support, it will be interesting to see if Judge Anderson’s decision has legs, since counsel for the plaintiffs has indicated that they intend to appeal the decision to the Seventh Circuit.[18] If other courts around the country following the reasoning of the River Village West decision or if the decision is ultimately sustained on appeal, plaintiffs in RCRA citizen suits may find themselves facing claims of pre-enforcement bar, as Judge Anderson’s decision provides an incentive for defendants to negotiate and enter into AOCs with EPA as a defensive measure. As noted in the Plaintiffs’ moving papers, this result could provide a significant disincentive for citizens to initiate their own litigation under RCRA.

For more information, contact Steve Jones or any other member of Marten Law Group’s Environmental Litigation Practice Group.