McClellan Ecological Seepage Situation v. Cheney

• Decision Date: 31 August 1989
• Docket Number: Civ. No. S-86-0475-RAR.
• Citation: 763 F. Supp. 431
• Court: U.S. District Court — Eastern District of California
• Parties: McCLELLAN ECOLOGICAL SEEPAGE SITUATION (MESS), Mary Fisher, Charles and Sandy Yarbrough, Plaintiffs, v. Richard B. CHENEY, Secretary of the United States Department of Defense, Defendant.

763 F. Supp. 431

McCLELLAN ECOLOGICAL SEEPAGE SITUATION (MESS), Mary Fisher, Charles and Sandy Yarbrough, Plaintiffs, v. Richard B. CHENEY, Secretary of the United States Department of Defense, Defendant.

Civ. No. S-86-0475-RAR.

United States District Court, E.D. California.

August 31, 1989.

Michael Axline, John E. Bonine, Western Natural Resources Law Clinic, Eugene, Or., Duane Miller, Miller & Rolfe, Sacramento, Cal., for plaintiffs.

Donald A. Carr, Acting Asst. Atty. Gen., Stephen L. Samuels, Asst. Chief, Environmental Defense Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., David F. Levi, U.S. Atty., Yoshinori H.T. Himel, Asst. U.S. Atty., Sacramento, Cal., for defendant.

MEMORANDUM OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

RAMIREZ, District Judge.

INTRODUCTION

This action arose on April 23, 1986, when plaintiffs McClellan Ecological Seepage Situation, Mary Fisher, and Charles and Sandy Yarbrough (hereinafter "MESS") filed a lawsuit seeking declaratory and injunctive relief as well as civil penalties against the Secretary of the Department of Defense under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6991i; the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387; California hazardous waste laws; and California water quality laws. The original complaint, which included twenty-three counts, alleged violations of those statutes by McClellan Air Force Base ("McClellan"), located in Sacramento, California.

On December 9, 1986, this Court granted the Government's motion to dismiss MESS' request for relief in the form of civil penalties. McClellan Ecological Seepage Situation (MESS) v. Weinberger, 655 F.Supp. 601 (E.D.Cal.1986). That determination was made based upon the Court's conclusion that neither the federal facilities provisions nor the citizen suit provisions of RCRA or the Clean Water Act waived the United States' sovereign immunity to civil penalties.¹

In the summer and fall of 1987, the parties filed cross-motions for summary judgment with respect to the substantive claims in MESS' complaint. On June 20, 1988, this Court issued an opinion and order on those cross-motions. McClellan Ecological Seepage Situation (MESS) v. Weinberger, 707 F.Supp. 1182 (E.D.Cal.1988). That decision dismissed large portions of the complaint and left other issues open for further factual development.

Meanwhile, on March 31, 1988, the Court granted a motion filed by MESS for leave to file an amended complaint in order to allege an additional cause of action under the Administrative Procedure Act ("APA") with respect to its claims alleging violations of state law.

Upon the completion of discovery, a second motion for summary judgment addressing the remaining issues in this case was filed by each party on November 22, 1988. After full briefing, oral argument on these motions was held on May 1, 1989. At the conclusion of the hearing, the Court announced its ruling from the bench. This memorandum opinion formalizes that bench ruling.

The issues addressed in the second round of summary judgment motions are as follows:

1. Whether any of McClellan's waste pits that are not covered by the facility's interim status under RCRA have handled hazardous wastes in such a way that a RCRA permit is required with respect to those units.

2. Whether McClellan has discharged toxic wastes from waste pits into navigable waters of the United States in violation of section 301 of the Clean Water Act, 33 U.S.C. § 1311.

3. Whether MESS has a cause of action under the Administrative Procedure Act with respect to its claims that McClellan has violated various state statutory and regulatory provisions relating to management of solid waste and to water pollution.

4. Whether declaratory relief is appropriate with respect to issues that the Court previously dismissed on grounds of mootness or lack of subject matter jurisdiction under the citizen suit provisions of RCRA and the Clean Water Act.

5. Whether McClellan violated various effluent limitations and receiving water standards set forth in its NPDES permits and related orders.

This memorandum opinion will address each of these issues in turn.

I. APPLICABILITY OF RCRA PERMIT REQUIREMENTS TO McCLELLAN'S WASTE PITS

As discussed in the June 20, 1988 decision, the parts of Counts 2, 3, 4, and 5 of MESS' complaint that were not dismissed in that order involve a common question: whether McClellan is required to obtain a RCRA permit for hazardous waste units that have not actively handled hazardous wastes since permitting requirements went into effect on November 19, 1980.

This Court agrees with the Government that a RCRA permit is not required with respect to treatment, storage, or disposal of hazardous wastes that occurred prior to November 19, 1980. Section 3005(a) of RCRA, 42 U.S.C. § 6925(a), for example, specifically requires permits only for the management of hazardous wastes "after such date" that EPA's permit regulations take effect, i.e., November 19, 1980. See also 53 Fed.Reg. 31,149 (Aug. 17, 1988) ("only facilities where hazardous waste is intentionally placed into land or water after November 19, 1980 require a RCRA disposal permit"); 45 Fed.Reg. 33,068 (May 19, 1980) ("the Agency's intent is not to regulate under Subtitle C portions of facilities closed before the effective date of the regulations"); 45 Fed.Reg. 12,747 (Feb. 26, 1980) ("RCRA Subtitle C Regulations do not cover ... abandoned sites").²

The question therefore arises whether McClellan treated, stored, or disposed of wastes in its waste pits after November 19, 1980. Throughout this litigation, MESS has contended that McClellan "stores" wastes in these waste pits. If "storage" has in fact occurred subsequent to November 1980, then such handling of wastes would require a RCRA permit. See Environmental Defense Fund, Inc. v. Lamphier, 714 F.2d 331 (4th Cir.1983); Fishel v. Westinghouse Electric Corp., 640 F.Supp. 442 (M.D.Pa.1986).

The term "storage" is defined in RCRA as "the containment of hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste." RCRA § 1004(33), 42 U.S.C. § 6903(33). EPA's implementing regulations define "storage" as "the holding of hazardous waste for a temporary period, at the end of which the hazardous waste is treated, disposed, or stored elsewhere." 40 C.F.R. § 270.2.

Here, the Government has presented uncontroverted evidence through the affidavit of Paul G. Brunner, the Deputy Director of the Environmental Management Directorate at McClellan Air Force Base, that "waste placed in pits at McClellan was intended for permanent disposal" and that "no disposal site at McClellan, not covered by interim status, has been used since November 19, 1980." Brunner Affidavit ¶ 7. MESS has made no attempt to refute these statements. Accordingly, this Court finds that the waste pits involved in Counts 2 through 5 of MESS' First Amended Complaint do not "store" hazardous wastes.

Lamphier and Fishel are inapposite. In each of those cases, the court found that there had been a temporary containment of materials accompanied by a subjective intent that at some time in the future there would be permanent disposal of the hazardous waste. Here, however, there was never an intent by McClellan to do anything other than make a final disposition of the waste material in question.

The only activity that has occurred at any of the inactive waste pits at McClellan since November 19, 1980 relates to the Department of Defense's Installation Restoration Program ("IRP"). See Exec.Order No. 12,580, 52 Fed.Reg. 2923 (Jan. 29, 1987). Furthermore, McClellan Air Force Base has been listed by EPA on the National Priorities List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675. That listing triggered an immediate requirement that McClellan, in consultation with EPA and appropriate state authorities, commence a remedial investigation and feasibility study for the facility under CERCLA § 120(e)(1). Remedial action at the facility occurs under the direct oversight of EPA and must meet standards that are at least as stringent as those existing under RCRA. McClellan is presently negotiating a comprehensive interagency agreement with EPA pursuant to CERCLA § 120(e)(2) to govern future remedial action at the base. The remedial action that is taken must, under section 121(d)(2)(A), attain all legally applicable standards, requirements, criteria, and limitations under all federal environmental laws, specifically including RCRA, the Safe Drinking Water Act, the Clean Air Act, the Clean Water Act, and the Marine Protection, Research and Sanctuaries Act, as well as all legally applicable standards, requirements, criteria, and limitations promulgated under state environmental and federal siting laws that are more stringent than those imposed under federal law.

Section 121(e)(1) of CERCLA provides that "no Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this section." 42 U.S.C. § 9621(e)(1). MESS' contention that McClellan's cleanup activities are not within the scope of section 121(e) are unconvincing for the reasons set forth in the Government's Memorandum in Opposition to Plaintiffs' Second Motion for Partial Summary Judgment at 7-9.

MESS mischaracterizes the Government's reliance on CERCLA § 121(e) when it states that "Defendant claims that hazardous waste pits on the base are exempted from RCRA's notification and permit requirements by section 121(e)." MESS Memorandum in Support of Second Motion for Partial Summary Judgment at 16. The Government has made it quite clear that it does not contend that section 121(e) "exempts" all activities involving treatment,...