Coalition for Health Concern v. LWD, Inc.

• Decision Date: 21 October 1993
• Docket Number: Civ. A. No. C92-0297-P(J).
• Citation: 834 F. Supp. 953
• Parties: COALITION FOR HEALTH CONCERN; Natural Resources Defense Council, Inc.; Sierra Club, Plaintiffs, v. LWD, INC.; Phillip J. Shepherd, in his official capacity as Secretary of the Kentucky Cabinet for Natural Resources and Environmental Protection; Kentucky Natural Resources & Environmental Protection Cabinet, Phillip J. Shepherd, Secretary, Defendants.
• Court: U.S. District Court — Western District of Kentucky

834 F. Supp. 953

COALITION FOR HEALTH CONCERN; Natural Resources Defense Council, Inc.; Sierra Club, Plaintiffs, v. LWD, INC.; Phillip J. Shepherd, in his official capacity as Secretary of the Kentucky Cabinet for Natural Resources and Environmental Protection; Kentucky Natural Resources & Environmental Protection Cabinet, Phillip J. Shepherd, Secretary, Defendants.

Civ. A. No. C92-0297-P(J).

United States District Court, W.D. Kentucky, Paducah Division.

October 21, 1993.

COPYRIGHT MATERIAL OMITTED

W. Henry Graddy, IV, Todd E. Leatherman, Reeves & Graddy, Versailles, KY, and Mick Harrison and Richard Condit, Washington, DC, for Coalition for Health Concern.

Nancy Marks, James F. Simon, Katherine Kennedy and Turner R. Odell, Jr., Natural Resources Defense Counsel, New York City, for Natural Resources Defense Council, Inc.

W. Henry Graddy, IV and Todd E. Leatherman, Reeves & Graddy, Versailles, KY, for Sierra Club.

George L. Seay, Jr., Wyatt, Tarrant & Combs, Frankfort, KY, Virginia Hamilton Snell, M. Stephen Pitt, Wyatt, Tarrant & Combs, Lexington, KY, and B.M. Westberry, Paducah, KY, for LWD, Inc.

Joyce M. Albro and John Horne, Frankfort, KY, for Phillip J. Shepherd, Secretary, Kentucky Cabinet for Natural Resources and Environmental Protection and Kentucky Natural Resources & Environmental Protection Cabinet.

MEMORANDUM OPINION

JOHNSTONE, District Judge.

This is a citizen suit brought under Section 7002 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972, and Section 310 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9659. Plaintiffs are environmental groups with members who live near Defendant LWD, Inc.'s hazardous waste incineration and disposal facilities at Calvert City, Kentucky, and an individual who also lives near the facilities. They claim that LWD is operating its facilities in violation of several provisions of RCRA and CERCLA, and that Defendant Phillip J. Shepherd, Secretary of the Kentucky Cabinet for Natural Resources and Environmental Protection, has failed to perform his statutory duty to enforce RCRA against LWD. The crux of the complaint is that LWD lost its interim authorization to operate without a hazardous waste permit pursuant to 42 U.S.C. § 6925(e) by repeatedly failing to furnish information reasonably required to process its permit application, and that the Secretary failed to take final action on the permit by November 8, 1989 as required by 42 U.S.C. § 6925(c)(2)(A)(ii). Plaintiffs seek an injunction terminating the operation of LWD's facilities, an order requiring the Secretary to deny LWD's permit application(s), civil penalties against LWD, and other relief.

The matter is before the court on Defendants' motions to dismiss based alternatively on the lack of subject matter jurisdiction; the doctrines of abstention, ripeness, and primary jurisdiction; and the Full Faith and Credit Act.

SUBJECT MATTER JURISDICTION

1. Diligent Prosecution by the Cabinet

This court has jurisdiction over citizen suits alleging violations of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to RCRA. 42 U.S.C. § 6972(a)(1)(A). However, 42 U.S.C. § 6972(b)(1)(B) prohibits such actions when the State in which the alleged violation occurs "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 provisions. The Secretary argues that this action is prohibited because the Cabinet has diligently enforced Kentucky's hazardous waste program (enacted pursuant to § 6926(b) of RCRA) with respect to LWD. LWD argues that the Cabinet is in the process of "diligently resolving issues" relating to LWD's permit.

Administrative enforcement, however diligent, does not satisfy § 6972(b)(1)(B), because the statute expressly requires that the State must have taken court action. Lykins v. Westinghouse Elec. Corp., 715 F.Supp. 1357 (E.D.Ky.1989).

Construing virtually identical language in the Clean Air Act, The Third Circuit held that an administrative hearing is equivalent to court action under certain circumstances. Baughman v. Bradford Coal Co., 592 F.2d 215, 219 (3d Cir.1979), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). The court extended this interpretation to § 6972(b)(1)(B) in Profitt v. Commissioners, Bristol Tp., 754 F.2d 504 (3d Cir.1985). Construing the same language in the Clean Water Act, the Second and Ninth Circuits rejected the Baughman approach as contrary to the plain language of the statute. Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57 (1985); Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517 (9th Cir.1987).

In Lykins, Judge Siler adopted the Friends of the Earth rationale and held that an administrative proceeding already begun by the Cabinet does not preclude a RCRA citizen suit in federal court. This court agrees. Congress demonstrated an ability to explicitly provide that either administrative or court action will preclude a citizen suit in § 6972(b)(2)(B) and (C), as it has done in other environmental statutes. See Friends of the Earth at 63. It chose not to do so in § 6972(b)(1)(B).

Neither the EPA nor the State has commenced a court action to require LWD's compliance with the RCRA provisions cited in Plaintiffs' complaint. LWD argues that the Cabinet's present enforcement activities with regard to LWD constitute court action because they derive directly from a Franklin Circuit Court order that resolved, "in consolidation with other actions," the suit of Natural Resources and Environmental Protection Cabinet v. LWD, Inc., et al., Civil Action No. 89-CI-1183. That lawsuit concerned the corporate reorganization of LWD. The January 23, 1992 order that resolved it had no bearing on the issues raised in this action.

LWD apparently refers to a separate order entered on the same day which resolved Civil Action No. 89-CI-1592, an action brought by LWD against the Cabinet to enjoin the Cabinet from enforcing its Final Permit Decision denying LWD's permit application. In that order, the Franklin Circuit Court found inter alia that the Cabinet had failed to conduct a hearing on the violations giving rise to its decision; that the Cabinet did not rely on the failure of a trial burn or "any other technical ground" as a basis for its decision; and that the issues raised in LWD's complaint were most appropriately decided before the Cabinet. It therefore enjoined the Cabinet from enforcing its decision and remanded the case to the Cabinet for determination of all issues relating to the permit denial in accordance with proper procedures.

Rather than conducting a hearing on remand, the Cabinet entered into an agreed administrative order with LWD in final settlement of all issues involved in the two Circuit Court actions and in four administrative actions then pending before the Cabinet. The December 6, 1991 agreement, filed in the Cabinet's Division of Hearings, sets forth terms under which LWD will operate pending the Cabinet's final permit decision, provides for trial burns to be conducted by LWD's incinerators, and imposes $100,000 in civil penalties against LWD "in final and complete resolution of any and all claims of liability which the Cabinet may have against LWD ..." The Cabinet's present enforcement activities with regard to LWD consist of enforcing the terms of this agreed order.

The negotiation of Defendants' agreed administrative order was arguably part of the Franklin Circuit Court litigation. Regardless, that action was concluded when the parties signed the agreed order in final settlement of the issues and the Circuit Court entered its final judgment. The fact that the terms of the settlement are still being carried out does not mean that the dispute is ongoing. The Cabinet's enforcement of the agreed order constitutes administrative action, not diligent prosecution of a court action within the meaning of § 6972(b)(1)(B). The Cabinet's activities do not preclude Plaintiffs' citizen suit.

2. The Imminent Endangerment Claim

a. In addition to alleging specific RCRA and CERCLA violations, Plaintiffs claim pursuant to 42 U.S.C. § 6972(a)(1)(B) that LWD's facilities pose an imminent and substantial endangerment to public health and the environment. LWD argues that jurisdiction over this claim is precluded by § 6972(b)(2)(B)(iv), because the EPA has issued an order under 42 U.S.C. § 6928(h) requiring LWD to perform a RCRA Facility Investigation to determine the nature and extent of any release of hazardous waste or hazardous constituents from LWD's facilities.

Paragraph (b)(2)(B)(iv) expressly precludes citizen suits brought under § 6972(a)(1)(B) only when the EPA has issued an order (or obtained a court order) under section 106 of CERCLA or 7003 of RCRA (42 U.S.C. §§ 9606, 6973), pursuant to which a responsible party is diligently conducting a removal action, Remedial Investigation and Feasibility Study (RIFS), or proceeding with a remedial action. LWD contends that its RCRA Facility Investigation under § 6928(h) is equivalent in purpose and effect to CERCLA's RIFS and therefore satisfies (b)(2)(B)(iv).

When Congress explicitly enumerates exceptions to a statutory provision, a court cannot infer additional exceptions without evidence of contrary legislative intent. See Andrus v. Glover Const. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 1910, 64 L.Ed.2d 548 (1980). Neither the statutory structure of RCRA nor its legislative history clearly indicates that Congress intended for 6928(h) orders to preclude citizen suits brought under 6972(a)(1)(B).

The express purpose of a citizen suit under § 6972(a)(1)(B) is to remedy an imminent and substantial endangerment to health or the environment. Accordingly, § 6972(b)(2)(B) precludes such suits when the EPA has already acted to remedy an imminent and substantial endangerment...