The Ninth Circuit recently issued an opinion that reflected a limited interpretation of the scope of the Resource Conservation and Recovery Act's anti-duplication provision, which provides that the act shall not be construed to apply to or authorise state regulation of "any activity or substance" regulated under several other federal statutes, including the Clean Water Act.

In the case at hand, the district court held that the anti-duplication provision barred the plaintiffs' Resource Conservation and Recovery Act citizen suit claims relating to the defendant's stormwater discharges, since the Environmental Protection Agency could require National Pollutant Discharge Elimination System permits for stormwater discharges such as the defendant's, although it had not done so. The Ninth Circuit reversed the district court's opinion, concluding that the anti-duplication provision only bars the Resource Conservation and Recovery Act's application if "that application contradicts a specific mandate imposed under the [Clean Water Act]". Because the defendant's stormwater discharges were not being regulated under the Clean Water Act, the anti-duplication provision did not bar the plaintiffs' Resource Conservation and Recovery Act citizen suit.

For further information on this topic please contact Samuel B Boxerman, Terence T Healey, Kenneth W Irvin or Benjamin E Tanner at Sidley Austin LLP office by telephone (+1 202 736 8000) or email (sboxerman@sidley.com, thealey@sidley.com, kirvin@sidley.com or btanner@sidley.com). The Sidley Austin LLP website can be accessed at www.sidley.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.