RCRA Endangerment Claims: A Newway To Regulate Point Source Discharges?

In 1972, Congress enacted the CleanWater Act (CWA), which created, among other things, the National Pollutant Discharge Elimination System (NPDES) of permits that allowed entities to lawfully discharge their wastewater into the nation's surface waters.1 NPDES permits were both a barrier to unlawful discharges and a shield for lawful ones: dischargers without a permit were subject to enforcement, whereas dischargers with a permit (and in compliance with it) were protected from enforcement and other collateral attack.

This year, in Tennessee Riverkeeper, Inc. v. 3M Co.,2 the federal district court for the Northern District of Alabama held that there may be, in effect, a new sheriff in town governing industrial discharges: the Resource Conservation and Recovery Act (RCRA). No matter that a discharge is in compliance with its NPDES permits; the discharge might also have to comply with RCRA's imminent and substantial endangerment ''standard'' as well.3 In the words of the court, it would not dismiss the case because the defendants had failed to provide ''any authority stating that a citizen cannot bring an RCRA claim to try to impose stricter limits on the disposal of hazardous waste than those imposed by an EPA-approved State permit or to supplement the terms of such a permit.''4

Congress foresaw and tried to foreclose exactly this kind of duplicative regulation when it adopted RCRA in 1976. Congress inserted in RCRA two separate provisions intended to wall off RCRA from CWA-regulated discharges. First, Congress excluded from the definition of ''solid waste''—and thereby from regulation under RCRA—''industrial discharges which are point sources subject to permits under'' CWA Section 402 (i.e., NPDES permits).5 Second, Congress barred RCRA from applying to ''any activity or substance which is subject to'' a host of environmental statutes including the CWA, ''except to the extent that such application (or regulation) is not inconsistent with the requirements of such'' other environmental statutes.6

At the time, these two exclusions appeared to be an effective wall against duplicative regulation.

In the last several years, however, plaintiffs have begun to dismantle this wall using RCRA citizen suits alleging imminent and substantial endangerment (endangerment claims) under RCRA Section 7002(a)(1)(B).7 The plaintiffs' strategy has been to ask for narrow readings of terms such as ''point sources,' ''subject to permits,' and, especially, ''not inconsistent with''—and the appellate courts have begun to comply.8 As a result, and as we previously wrote in this publication, the regulated community has ' no easy path to dismissal or summary judgment for RCRA citizen suits relating to [CWA] non-point sources or unpermitted discharges.' 9

The latest lawsuit to attack RCRA's non-duplication exclusions is Tennessee Riverkeeper. In Tennessee Riverkeeper, the court denied motions to dismiss a RCRA endangerment claim targeting, among other things, ''industrial discharges which are point sources'' in compliance with a NPDES permit,10 i.e., discharges that appeared to be excluded from regulation under RCRA. The court has not yet delivered its final verdict on this issue, but, at least for the time being, the court's language suggests that the wall between RCRA and the CWA may be nothing but rubble.

The result, we believe, is inconsistent with the plain language and purpose of the RCRA exclusions as well as EPA guidance, and invites needless and duplicative RCRA litigation over matters within the express domain of the CWA. In this article, we contrast the Tennessee Riverkeeper decision with the language and intent of the RCRA non-duplication provisions, and offer the regulated community recommendations that may help defend against future endangerment claims.

RCRA's Two Anti-Duplication Exclusions

RCRA's Point Source Exclusion

One of the predicates for a RCRA endangerment claim is that the defendant must have ''contributed or [be] 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.' 11 In order to be a ''hazardous waste,' a material must first meet the definition of ''solid waste.' 12 Accordingly, if something does not meet the definition of ''solid waste,' then it cannot be the subject of an endangerment claim.

Solid waste is generally an inclusive term, but it explicitly excludes ''industrial discharges which are point sources subject to'' NPDES permits13 (which we refer to as the ''Point Source Exclusion''). As courts have recognized, the Point Source Exclusion's ''purpose .. . is to avoid duplicative regulation'' under both the CWA and RCRA.14

The U.S. Environmental Protection Agency (EPA) has further explained the meaning of ''subject to'' a NPDES permit, which proved to be a significant issue in Tennessee Riverkeeper. According to 1995 EPA guidance on the Point Source Exclusion (EPA Guidance), ''subject to'' should be given its broadest possible interpretation: ''EPA has consistently interpreted the language 'point sources subject to permits under [section 402 of the Clean Water Act]' to mean point sources that should have a NPDES permit in place, whether in fact they do or not.' 15

  1. RCRA's Anti-Duplication Provision

    RCRA also has a second exclusion to prevent duplicative regulation, the so-called 'Anti-Duplication Provision'':

    Nothing in [RCRA] shall be construed to apply to (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to the [Clean Water Act], the Safe Drinking Water Act [42 U.S.C. 300f et seq.], the Marine Protection, Research and Sanctuaries Act of 1972 [16 U.S.C. 1431 et seq., 1447 et seq., 33 U.S.C.

    1401 et seq., 2801 et seq.], or the Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.] except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts.16

    The Anti-Duplication Provision has been a key target of RCRA endangerment claims, which have focused on narrowing the interpretation of the term ''not inconsistent.' If ''not inconsistent'' is interpreted broadly, any RCRA regulation of a NPDES-permitted discharge might be ''inconsistent'' with CWA regulation.. That is, the permit might be viewed as an affirmative decision to regulate the pollutants named in the permit at the specified discharge limits, and also as an affirmative decision not to regulate unnamed pollutants or impose more stringent limits. This is consistent with the EPA Guidance admonition that discharges are excluded from RCRA regulation if they ' should have a NPDES permit in place, whether in fact they do or not.' 17

    If ''not inconsistent' is interpreted more narrowly, however, the permit could become only a regulatory floor, where plaintiffs are free to use RCRA to regulate any unnamed pollutants and impose more stringent limits on the named pollutants. A narrow interpretation would, as a practical matter, defeat the purpose of the AntiDuplication Provision by allowing plaintiffs to use RCRA to add to or modify the limits of NPDES permits regardless of whether the defendant might be in compliance with such permits.

    Appellate courts have split over the appropriate breadth of ''not inconsistent.' The Court of Appeals for the Fourth Circuit, in its decision last year in Goldfarb v. Mayor & City Council of Baltimore,18 came down squarely in favor of the narrowest possible interpretation, at least for non-point sources. According to the Goldfar b court, to be ''inconsistent,' ''the CWA must require something fundamentally at odds with what RCRA would otherwise require. ... RCRA mandates that are just different, or even greater, than what the CWA requires are not necessarily the equivalent of being 'inconsistent' with the CWA.' 19

    In contrast, the Court of Appeals for the Second Circuit has favored a broader interpretation. In the 2008 case Coon v. Willet Dairy, LP, the Second Circuit found that RCRA's Anti-Duplication Provision barred an endangerment claim where the ''RCRA claims are based on the same activities and substances that the CWA [permit] covers,' and ' [t]herefore, pursuant to [the Anti-Duplication Provision], the RCRA cannot apply...

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