The Resource Conservation and Recovery Act (RCRA) largely takes a hands-off approach to industrial facilities with point-source discharges regulated by the Clean Water Act (CWA).1 These facilities are governed by their National Pollutant Discharge Elimination System (NPDES) permit or pretreatment permit rather than by RCRA, and their permitted discharges are not solid waste.2 This last point is key because it potentially protects companies who comply with their permits from citizens suits alleging that the permitted discharges are causing imminent and substantial endangerment under section 7002 of RCRA, 42 U.S.C. § 6972.

Non-point source discharges and unpermitted discharges are an altogether different story, however. For non-point sources, a recent decision by the Court of Appeals for the Fourth Circuit in Goldfarb v. Mayor and City Council of Baltimore3suggests that CWA permits may provide few protections against RCRA citizens suits. And for unpermitted discharges, the Court of Appeals for the Ninth Circuit, inEcological Rights Foundation v. Pacific Gas & Electric Co. (ERF),4has been asked to hold that the CWA provides no protection against citizens suits even where no permit is required because of a "low" likelihood of adverse impacts on water quality.5

Assuming that the Ninth Circuit follows the rationale in Goldfarb, the two Courts of Appeals will have opened the way for plaintiffs to use the courts to regulate water discharges (and the industrial practices that create them), unless the discharge is an industrial point source with a NPDES or pretreatment permit. In this Alert, we first discuss Goldfarb and ERF, and then examine which facilities may be most vulnerable to RCRA citizens suits for CWA-compliant discharges and whether there are any limits on the relief that these suits may seek.

I. Background

A. RCRA's Anti-Duplication Provision

Among the family of media-specific environmental statutes that Congress enacted in the 1970s, RCRA was the youngest sibling, having been enacted in 1976 several years after the CWA, the Clean Air Act, the Safe Drinking Water Act, and several others. Like the parent in any growing family, Congress had to make a place for RCRA without encroaching on the territory of the earlier arrivals. Congress's solution was Section 1006(a), 42 U.S.C. § 6905(a).

As relevant here, the general purpose of Section 1006(a) - also known as RCRA's anti-duplication provision - is as follows:

Nothing in this chapter [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 Federal Water Pollution Control Act [33 U.S.C. 1251 et seq.], 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.6

The bulk of the litigation surrounding Section 1006(a) has focused on the scope of its exception - that RCRA shall not apply "except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts." Courts have long made clear that inconsistency takes more than mere overlapping regulation,7 finding that Section 1006(a) "contemplates joint regulation under both RCRA and the [other Acts] in certain circumstances."8 Accordingly, the key question is "how Congress intended the two regulatory regimes to coexist,"9 and whether the relief plaintiff seeks is consistent with that coexistence.

B. Goldfarb v. Mayor

The Fourth Circuit's recent decision in Goldfarb v. Mayor & City Council of Baltimore 10 illustrates how limited the protections of Section 1006(a) can be. Goldfarb involved a casino construction site that had a General Construction Stormwater Permit issued by Maryland under its delegated NPDES authority. After reviewing the permit, the district court held that "further remedial requirements imposed under [RCRA's imminent and substantial endangerment provision] would be inconsistent with the remedial activities already deemed appropriate for the Site as part of the obligations imposed by the" NPDES permit.11 To hold otherwise "would require this Court to simply ignore express provisions in the Maryland General Construction Stormwater Permit and the sediment control and stormwater management plans."12

On appeal, the Fourth Circuit disagreed. Even though the district court had expressly described the permit provisions that the lawsuit would nullify, the Fourth Circuit found it had not done enough. The district court had simply rested "on the faulty premise that the CWA and RCRA cannot regulate the same activity under any circumstance."13 For Section 1006(a) to bar plaintiffs' claims, "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."14 The Fourth Circuit remanded the decision to the district court with instructions to identify what specifically would be inconsistent in the defendant's obligations and actions under its CWA permits if it also had to comply with RCRA.15

C. ERF v. PG&E

In ERF, the plaintiff filed suit against the Pacific Gas & Electric Company (PG&E) over PG&E's practices for handling and storing utility poles treated with pentachlorophenol (PCP). As relevant here, plaintiff alleged that, when PG&E stored its treated utility poles in uncovered bins, "stormwater laden with oils, PCP and dioxins" flowed from the bins "into PG&E's stormwater conveyance systems, which in turn route this contaminated stormwater off-site into San Francisco and Humboldt Bays."16 According to ERF, this created an imminent and substantial endangerment for which ERF had standing to seek abatement.

Unlike the casino in Goldfarb, PG&E lacked a NPDES permit. PG&E argued that this was irrelevant because the CWA did not require it to obtain a permit, and the district court agreed.17 The district court found that, permit or not, the CWA regulated PG&E stormwater:

[T]he Clean Water Act indisputably regulates stormwater discharges from the PG&E facilities. As explained in the prior order, the regulations under that Act do not require PG&E to obtain a permit for those discharges, thereby defeating the claim that PG&E is not in compliance. By virtue of [Section 1006(a)], RCRA cannot not serve as an additional avenue to impose a different regulatory requirement.18

Accordingly, the district court dismissed plaintiff's RCRA claims related to the stormwater discharges.

ERF immediately appealed to the Ninth Circuit arguing, among other things, that the lack of a permit was fatal to PG&E's defense under Section 1006(a).19 EPA filed an amicus brief substantively agreeing with ERF, and advising the court that the district court's opinion contradicted EPA's long-held interpretation of Section 1006(a). EPA argued that Section 1006(a) does not impose a categorical exemption simply because an activity or substance is "subject to" the CWA; instead, a "particular conflict" or "actual inconsistency" between RCRA and the CWA is required.20 No such "actual inconsistency" with CWA requirements could exist in ERF because there were no CWA requirements at all, i.e., no "specific directives that require an agency or a person to take or refrain from taking certain actions, to follow certain procedures, or to meet certain standards and regulations."21 EPA urged the Ninth Circuit to reverse and remand the case to the district court.22

PG&E countered with numerous arguments, including that the stormwater discharges are subject to various local stormwater management requirements, that there is no need to apply RCRA because the CWA applies to all stormwater discharges from point sources, and that, under 40 C.F.R. § 261.4(a)(2), the "[i]ndustrial wastewater discharges that are point source discharges" are not solid waste.23 With respect to Section 1006(a), PG&E argued, inter alia, that Congress enacted the Water Quality Act (WQA) in 1987 - subsequent to Section 1006(a)'s enactment - to amend the CWA and place stormwater discharges exclusively under CWA, and not RCRA, regulation.24 PG&E also contended that "the district court's decision affects only private litigants until such time as EPA or delegated state regulators choose to regulate" these additional stormwater discharges.25

II. Where Does that Leave the Regulated Community?

As of the date of this Alert, the Ninth Circuit has not yet decided ERF. If the Ninth Circuit affirms the district court, then it likely will create a split between the Ninth Circuit on the one hand, and at least the Fourth and D.C. Circuits on the other. If the Ninth Circuit reverses the district court for reasons substantially the same as those of Goldfarb, however, then the consequences for the regulated community seem clear. There often may be no easy path to dismissal or summary judgment for RCRA citizens suits relating to non-point sources or unpermitted discharges.

In the remainder of this Alert, we examine which facilities may be most vulnerable to such RCRA citizens suits, and whether their Section 1006(a) imposes any limits on the relief that these suits may seek.

A. What CWA Facilities and Discharges Are Vulnerable to RCRA Citizens Suits for Imminent and Substantial Endangerment?                   

1. Permitted Point Sources. Any industrial point source with a CWA or pretreatment permit should be protected from RCRA citizens suits as long as it complies with its permit. RCRA citizens suits are predicated on RCRA violations and on abatement of conditions caused by improper management of solid waste, and permitted industrial point-source discharges are not solid waste governed by RCRA.26

(As an aside, ERF raises the interesting issue of whether a site, like the PG&E site, that is not engaged in "industrial activity" for purposes of stormwater permitting, see 40 C.F.R. § 122.26(b)(14), could nonetheless benefit from the RCRA exclusion for industrial point source discharges if it had a permit under the CWA. We are aware of no guidance on point, but we believe that the exclusion should apply regardless of whether the site is engaged in "industrial activity" for purposes of 40 C.F.R. § 122.26(b)(14).)

2. Permitted Non-Point Sources. Facilities with permitted non-point sources, such as many facilities with general stormwater permits for construction activities, are squarely within the scope of Goldfarband hence vulnerable to RCRA citizens suits. This would include virtually all facilities with construction projects that require significant grading (usually one acre or more) or other surface disturbance.

3. Sources for which No Permit is Required. Sources for which no permit is required, whether point (ERF) or non-point (Goldfarb), also are vulnerable to RCRA citizens suits.

B. Does Section 1006 Impose Any Limits on the Relief Awarded in RCRA Citizens Suits?                                                              

Plaintiffs typically use RCRA citizens suits to obtain injunctive relief.27 After Golfarb and potentiallyERF, does Section 1006(a) impose any limits on this relief? According to the Fourth Circuit, the answer seems to be no unless the suit is "fundamentally at odds"28 with the CWA. It is not enough that the suit seeks relief that is "different, or even greater, than what the CWA requires."29 Before Section 1006(a) kicks into action, there must be an actual conflict between RCRA and the CWA.30

As a practical matter, this "actual conflict" standard may be irrelevant in the context of a RCRA citizens suit. Citizens suit plaintiffs typically are seeking relief that is "greater than," not in conflict with, what the CWA (or other statute) supplies.31 For example, a plaintiff seeking an environmental cleanup typically would want relief that is "greater than" the erosion and sediment controls, personnel training, discharge minimization, recordkeeping, and other requirements of a general stormwater permit for construction activities.

The "actual conflict" standard may be particularly irrelevant for facilities, like PG&E in ERF, that have no permit. If the CWA imposes no permit or other requirements on a facility, then there can be no actual conflict between these (nonexistent) requirements and RCRA that will preclude RCRA's application.

III. Conclusion

Goldfarb and, potentially, ERF, go a long way toward rendering Section 1006(a) a nullity in RCRA citizens suits. Plaintiffs typically bring such suits to demand more than other statutory regimes require, a demand that the Goldfarb court found consistent with Section 1006(a). Accordingly, as long as plaintiffs craft their demands for relief to add to the requirements of the other Section 1006(a) statutes, their complaints should survive motions for dismissal or summary judgment. Since these suits can be costly to defend (requiring environmental sampling, risk assessments, toxicological evaluation and other subjects of expert testimony), the costs of RCRA citizen suit litigation may increase.

The only discharges protected from citizens suits are permitted industrial point-source discharges. And these discharges are protected not by Section 1006(a), but because they are not solid waste at all, and hence not subject to RCRA.