644 F.3d 483 (7th Cir. 2011), 10-2237, Adkins v. VIM Recycling, Inc.

Docket Nº:10-2237.
Citation:644 F.3d 483
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:Jerry ADKINS, et al., Plaintiffs-Appellants, v. VIM RECYCLING, INC., K.C. Industries, LLC, and Kenneth R. Will, Defendants-Appellees.
Attorney:Richard H. Frankel, Appellate Litigation Clinic, Philadelphia, PA, Kelly Jay Payn (argued), Michael Sanford, for Plaintiffs-Appellants. Amy E. Romig (argued), Plews, Shadley, Racher & Braun LLP, Indianapolis, IN, for Defendants-Appellees.
Judge Panel:Before RIPPLE and HAMILTON, Circuit Judges, and MURPHY, District Judge.[*] RIPPLE, Circuit Judge, concurring in part and dissenting in part.
Case Date:May 03, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
FREE EXCERPT

Page 483

644 F.3d 483 (7th Cir. 2011)

Jerry ADKINS, et al., Plaintiffs-Appellants,

v.

VIM RECYCLING, INC., K.C. Industries, LLC, and Kenneth R. Will, Defendants-Appellees.

No. 10-2237.

United States Court of Appeals, Seventh Circuit

May 3, 2011

Argued Jan. 20, 2011.

Page 484

[Copyrighted Material Omitted]

Page 485

Richard H. Frankel, Appellate Litigation Clinic, Philadelphia, PA, Kelly Jay Payn (argued), Michael Sanford, for Plaintiffs-Appellants.

Amy E. Romig (argued), Plews, Shadley, Racher & Braun LLP, Indianapolis, IN, for Defendants-Appellees.

Before RIPPLE and HAMILTON, Circuit Judges, and MURPHY, District Judge.[*]

Page 486

HAMILTON, Circuit Judge.

This appeal presents questions regarding the citizen-suit provisions in the federal Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., including when a narrower government enforcement lawsuit may preclude a broader citizen suit, and how the citizen-suit provisions interact with the federalism doctrines of Colorado River and Burford abstention. The district court in this case relied on statutory provisions and the abstention doctrines to dismiss the plaintiffs' citizen suit under RCRA. We reverse and remand to allow the plaintiffs to pursue their citizen suit.

I. Citizen Suits Under RCRA

We consider here the relationships among three lawsuits: two state court actions filed by a state environmental agency and the federal citizen suit. The details of those cases will be easier to follow if we first sketch the relevant statutory provisions. The Resource Conservation and Recovery Act, commonly known as RCRA, enacted a broad range of policies and procedures to control disposal of solid and hazardous waste in the United States to protect public health and the environment. Like other federal environmental laws, RCRA provides for a complex partnership between federal and state authorities to develop and enforce regulatory standards.

Also like other federal environmental laws, RCRA does not give sole responsibility to federal and state environmental agencies and assume that they will enforce the law adequately. RCRA includes provisions for citizen suits in federal district courts to enforce the law. The RCRA citizen-suit provision, 42 U.S.C. § 6972, lies at the center of this appeal. Subsection (a) provides the general authority to bring citizen suits and provides for jurisdiction in the federal district courts. Subsection (a)(1) provides for two distinct types of citizen suits— " violation" actions in subsection (a)(1)(A) and " endangerment" actions in subsection (a)(1)(B). The citizen suit in this appeal combines both violation and endangerment claims. The statute provides in relevant part:

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

(1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or

(B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present 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....

42 U.S.C. § 6972(a)(1).

The specific statutory issues in this case concern the exceptions in subsection (b), which require plaintiffs in citizen suits to give notice to the federal Environmental Protection Agency, the relevant state agency, and the alleged violator, and which prohibit a citizen suit if the EPA or the state agency commences and diligently prosecutes its own action to enforce

Page 487

RCRA. More specifically, subsection (b) provides with regard to " violation" claims:

(b) Actions prohibited

(1) No action may be commenced under subsection (a)(1)(A) of this section—

(A) prior to 60 days after the plaintiff has given notice of the violation to—

(i) the Administrator;

(ii) the State in which the alleged violation occurs; and

(iii) to any alleged violator of such permit, standard, regulation, condition, requirement, prohibition, or order, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchapter III of this chapter; or(B) 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.

In any action under subsection (a)(1)(A) of this section in a court of the United States, any person may intervene as a matter of right.

42 U.S.C. § 6972(b); see also Hallstrom v. Tillamook County, 493 U.S. 20, 31, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (describing RCRA's notice and 60-day delay requirements as " mandatory conditions precedent to commencing suit under the RCRA citizen suit provision" and ordering dismissal of citizen suit that had been filed before waiting period ran, despite years of litigation resulting in final judgment ordering remediation).

In this case, we must apply these provisions to a citizen suit that was filed after appropriate notices were given to the federal EPA, the state environmental agency, and the alleged violators. The first and simplest issue is whether the plaintiffs could continue to pursue their citizen suit in federal court when the state agency filed a later enforcement action in state court. Our answer is yes. The second issue is whether the plaintiffs could file their federal citizen suit after the state agency had filed a much narrower enforcement action against the same alleged violators, and after the alleged violators persuaded the court not to allow the plaintiffs to intervene to broaden that state court enforcement action to assert the claims they then presented to the federal court. Our answer is also yes.

After resolving these statutory issues in favor of the plaintiffs, we turn to whether the Colorado River or Burford abstention doctrines justify dismissal or stay of this citizen suit. Our answer to that question is no, so that the plaintiffs are entitled to pursue the relief they seek from the federal district court. The district court may certainly coordinate its efforts with the state courts, and may use its sound discretion in doing so, but it must allow these plaintiffs to proceed with their case in the forum they have chosen and that Congress has authorized.

II. The Parties, the VIM Site, and the Litigation History

Defendants Kenneth R. Will, K.C. Industries, LLC, and VIM Recycling, Inc. (collectively " VIM" ) operate a solid waste dump in Elkhart, Indiana. Lead plaintiff Jerry Adkins and other residents of the area brought this suit against VIM in federal district court under RCRA and added various state law claims. VIM's regulatory history and the nature of the three enforcement lawsuits are essential to our disposition of the questions presented.

Page 488

We begin in late 1999, when the Indiana Department of Environmental Management (" IDEM" ) ordered VIM to remove several waste piles and to cease outdoor grinding of solid waste at a different location in Goshen, Indiana. Rather than stopping its activities, VIM moved its operation to nearby Elkhart, a move that would come to upset many Elkhart residents, including the plaintiffs here. By 2004, the Elkhart County Solid Waste Management District Board had received numerous complaints from families and businesses in VIM's vicinity. When IDEM inspected VIM's Elkhart operations in August 2005 and January 2006, it found several ongoing air pollution and solid waste violations.

In an attempt to remedy some of VIM's many regulatory violations, IDEM and VIM entered into an Agreed Order on January 16, 2007. Among other things, the Agreed Order required VIM to obtain the required permits for its activities, to stop taking so-called " C" grade waste to non-permitted facilities, to stop putting any unregulated waste on the berm at the VIM site, to confirm through sampling and analysis that the berm did not cause a threat to human health and the environment, to stop putting any waste onto VIM's " C" grade piles, and to remove the " C" grade waste by September 2008.1

The deadline came and went without compliance. When IDEM inspected VIM's Elkhart operation on October 2, 2008, it found that VIM had not removed the " C" grade waste as required by the Agreed Order. The next day, on October 3, 2008, IDEM filed suit in the Elkhart Circuit Court to enforce the Agreed Order, particularly with regard to VIM's failure to remove the " C" grade waste at the site. (We refer to this 2008 suit as the first IDEM lawsuit.)

Several Elkhart area residents who would later become plaintiffs in this federal citizen suit first sought to intervene in that first IDEM lawsuit. The intervenors also sought to expand the scope of the complaint in the first IDEM lawsuit beyond the scope of the Agreed Order. The intervenors sought injunctive relief that would have required VIM to cease all operations pertaining to the illegal disposal of all solid waste at the VIM site (not just " C" grade waste), and to remediate the...

To continue reading

FREE SIGN UP