McClellan Ecological Seepage v. Weinberger

• Decision Date: 20 June 1988
• Docket Number: No. CIV S-86-475-RAR.,CIV S-86-475-RAR.
• Citation: 707 F. Supp. 1182
• Parties: McCLELLAN ECOLOGICAL SEEPAGE SITUATION (MESS), Mary Fisher, Charles and Sandy Yarbrough, Plaintiffs, v. Caspar Willard WEINBERGER, Secretary of the United States Department of Defense, Defendant.
• Court: U.S. District Court — Eastern District of California

707 F. Supp. 1182

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

No. CIV S-86-475-RAR.

United States District Court, E.D. California.

June 20, 1988.

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Michael Axeline, Western Natural Resources Law Clinic, Eugene, Or., for plaintiffs.

Steve Samuels, U.S. Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

RAMIREZ, District Judge.

INTRODUCTION

On April 23, 1986, plaintiffs McClellan Ecological Seepage Situation, Mary Fisher, and Charles and Sandy Yarbrough (hereinafter "MESS") brought this action 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. §§ 6901-6987; the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1376; California hazardous waste laws; and California water quality laws. The complaint, which originally included twenty-three counts, alleges violations of those statutes by McClellan Air Force Base ("McClellan") in Sacramento, California. On December 9, 1986, this Court granted the Government's motion to dismiss MESS' request for civil penalties. McClellan Ecological Seepage Situation v. Weinberger, 655 F.Supp. 601 (E.D.Cal.1986). Moreover, by stipulation and order, Counts 1, 4(A), 7, and 19(C) of the complaint have been dismissed without prejudice. (Orders dated August 4, 1987 and September 25, 1987.)

On July 2, 1987, MESS filed a motion for partial summary judgment with respect to Counts 2, 3, 4(B and C), 6, 8, 10, 12, 13, 14, 15, 16, 22, and 23 of its complaint. On October 26, 1987, the Government filed a motion for summary judgment, which relates to all counts of the complaint except those previously dismissed by stipulation and order. After full briefing of the cross-motions for summary judgment, oral argument was held on February 8, 1988. At the conclusion of the argument, the Court ruled from the bench on the cross-motions. This memorandum opinion formalizes that bench ruling.

MESS is a group of concerned citizens who live near McClellan Air Force Base. McClellan is a major aircraft maintenance facility operated by the Department of Defense. In its complaint, MESS alleges that McClellan's practices and procedures with respect to industrial and domestic wastes have violated and threaten to violate various environmental laws. Specifically, MESS alleges that McClellan's generation, treatment, and disposal of wastes are in conflict with RCRA (Counts 2 through 5); provisions of the California Health and Safety Code (Counts 6 through 11 and 21); the Clean Water Act (Counts 12 through 15, 22, and 23); provisions of the California Water Code (Counts 16 through 19); and the California Fish and Game Code (Count 20). Counts 2 through 11 are brought under the citizen suit provision of RCRA, RCRA § 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A), and Counts 12 through 23 are brought under the citizen suit provision of the Clean Water Act, CWA § 505(a)(1), 33 U.S.C. § 1365(a)(1).¹

By agreement of counsel and the Court, proceedings in this action were bifurcated. The present round of motions for summary judgment involves purely legal issues, undisputed facts, or facts the development of which have not required extensive discovery. Any issues not resolved in this round of motions will be subject to additional discovery and a second round of motions for summary judgment at a later date.

This opinion will address the remaining counts in MESS' complaint one-by-one. Each major section below (RCRA and the Clean Water Act) will be preceded by a brief overview of the relevant statutory provisions.

CLAIMS BROUGHT UNDER RCRA

Subtitle C of RCRA creates a "cradle-to-grave" management system which is intended to ensure that hazardous wastes are safely treated, stored, and disposed of after November 19, 1980. 42 U.S.C. §§ 6921-6934. Section 3005 of RCRA, 42 U.S.C. § 6925, requires facilities that treat, store, or dispose of hazardous waste after November 19, 1980 to obtain a permit from EPA or from a state authorized by EPA to administer its own hazardous waste program. There are two parts to a permit application — Part A and Part B. Part A requires general background information regarding the management of hazardous wastes at a facility, while Part B requires a much more extensive report. See 40 C.F.R. § 270.14.

Congress recognized that if every hazardous waste management facility in existence on November 19, 1980 was immediately subject to the permit requirements of RCRA, a bureaucratic nightmare would exist for the Environmental Protection Agency ("EPA"), the agency charged with administering RCRA in coordination with the states. Therefore, in order to provide for an ample amount of time to set up the administrative machinery necessary to accommodate all the requirements of RCRA, Congress established a program of interim status for facilities already in operation, such as McClellan. Under this program, certain existing hazardous waste management facilities are treated as having been issued a RCRA permit until final administrative disposition of their permit applications can be made. RCRA § 3005(e), 42 U.S.C. § 6925(e).

In order to obtain this "interim status," a hazardous waste management facility must fulfill three conditions. See RCRA § 3005(e)(1). First, the facility must have been in existence on November 19, 1980 or on the effective date of the statutory or regulatory changes which render the facility subject to the permit requirement. Second, where applicable, the owner or operator must have submitted preliminary notification to EPA stating the location and general description of its hazardous waste activity and listing the hazardous wastes involved in its operation. Finally, the owner or operator must have applied for a permit under RCRA § 3005. EPA has interpreted this third condition as requiring submission only of Part A of the permit application; Part B is submitted when EPA initiates the final permitting process for an individual facility. 40 C.F.R. § 270.1(b). Facilities with interim status must comply with self-implementing technical standards that are analogous to but less stringent than the standards for permitted facilities. See 40 C.F.R. Part 270.1(b) and Part 265.

Congress was also concerned that the Federal government might not be able to administer the RCRA program effectively in all states. Accordingly, Congress enacted provisions which allow the various states to receive full or partial authorization to administer their own hazardous waste programs "in lieu of" the Federal program. Specifically, section 3006 of RCRA, 42 U.S.C. § 6926, provides that any state wishing to administer and enforce a hazardous waste program under RCRA may apply to the EPA Administrator for authorization. If the Administrator determines that the state program satisfies specified standards, the state is authorized to administer its program "in lieu of" the federal program. California received partial interim authorization in 1981 and 1983, but that authorization expired on January 31, 1986. 51 Fed.Reg. 4128 (Jan. 31, 1986).

Congress also provided for a limited waiver of sovereign immunity in RCRA. Specifically, section 6001 of RCRA, 42 U.S.C. § 6961, provides that facilities operated by the federal government are subject to all federal, state, interstate, and local "requirements" respecting the control and abatement of solid waste or hazardous waste disposal. Moreover, section 7002(a) of RCRA, 42 U.S.C. § 6972(a), authorizes any person to commence a civil action against any other person, including the United States, who is alleged to be in violation of an obligation "which has become effective pursuant to" RCRA. However, such a citizen suit may be maintained only if the plaintiff has provided sixty days notice of its claims to the alleged violator, the state, and EPA. RCRA § 7002(b)(1).

Waivers of sovereign immunity, of course, are not to be liberally interpreted. As this Court previously stated in dismissing MESS' claim for civil penalties, the United States cannot be sued unless it consents to be sued. Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983). There cannot be a waiver of sovereign immunity unless the waiver is clear, concise, and unequivocal. Army & Air Force Exchange Service v. Sheehan, 456 U.S. 728, 734, 102 S.Ct. 2118, 2122, 72 L.Ed.2d 520 (1982). When there is any doubt, waiver will not be found. Waiver cannot be implied. It cannot be assumed. It cannot be based on speculation, surmise, or conjecture. United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). Ambiguous language will not equate to waiver. Any limitation on the United States' consent to be sued must be strictly construed in favor of the sovereign and may not be modified by implication. Ruckelshaus v. Sierra Club, 463 U.S. 680, 683-85, 103 S.Ct. 3274, 3276-77, 77 L.Ed.2d 938 (1983).

Count 2 — RCRA § 3005(a)

In Count 2 of the complaint, MESS alleges that McClellan has violated section 3005(a) of RCRA. That section prohibits the treatment, storage, or disposal of hazardous wastes after the effective date of regulations promulgated by EPA, except in accordance with a permit. MESS asserts that McClellan "has been discharging, storing, and treating hazardous wastes without a permit to do so since November 19, 1980, when the regulations identifying the characteristics of hazardous wastes (40 C.F.R. § 261.31) became effective." Complaint ¶ 45. Specifically, MESS contends that McClellan's Part A application did not mention "storage of hazardous wastes in the base cooling system and in unlined underground burial pits" (MESS Memorandum at 21) and that McClellan therefore lacks interim status...