A federal judge in Tennessee has ruled that a RCRA citizen suit aimed at cleaning up a state landfill may proceed, rejecting an argument that a state order is an ongoing CERCLA action that may not be challenged. NRDC v. County of Dickson, No. 08-0229 (M.D. Tenn. 04/01/10). The complaint alleged that the landfill was an “imminent and substantial endangerment” and sought an order directing defendants to address trichloroethylene and perchloroethylene contamination at the site. Defendant filed a motion to dismiss, arguing that the citizen suit was barred by 42 U.S.C. § 6972(b) (2)(B), which bars such actions if EPA has issued an order under which a responsible party is remediating the contamination. Defendants argued that the state, under an agreement with EPA, is authorized to act as EPA to enforce the RCRA program, essentially “stepping into the shoes” of the EPA administrator.
The court disagreed with defendants, ruling that the agreement allows the state to step into the shoes of EPA for purposes of 42 U.S.C. § 6926, but that it does not apply to “imminent hazard” allegations under 42 U.S.C. § 6973. According to the court, “[b]ecause the state’s order is not an administrative order issued by the EPA Administrator regarding an imminent hazard for purposes of 42 U.S.C. § 6972(b)(2)(B)(u), there is no bar to the citizen suit.”