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LUTZ v. CHROMATEX

October 5, 1989

CARL LUTZ and DEBORAH LUTZ, et al., Plaintiffs
v.
CHROMATEX, INC., et al., Defendants


William J. Nealon, United States District Judge.


The opinion of the court was delivered by: NEALON

WILLIAM J. NEALON, UNITED STATES DISTRICT JUDGE

 Currently before the court are defendants' motions to dismiss plaintiffs' second amended complaint and plaintiffs' motion for leave to file a third amended complaint. For the reasons that follow, defendants' motions will be denied and plaintiffs' motion will be granted.

 BACKGROUND

 The complete factual and procedural history of this case is detailed in this court's Memorandum and Order of June 9, 1989 and will not be reiterated here. See documents 65 and 66 of record. In its June 9 Order, the court granted in part defendants' motions to dismiss plaintiffs' first amended complaint and directed plaintiffs to file a second amended complaint. See document 66 of record. That complaint was timely submitted on June 29, 1989. See document 70 of record.

 In connection with the second amended complaint, defendants again submitted motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on July 13, 1989. See documents 78-81 of record. Defendants' primary argument is that a citizen suit pursuant to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (hereinafter RCRA) may not be based on provisions of Pennsylvania law because those provisions have not "become effective pursuant to [RCRA]." See 42 U.S.C. § 6972(a)(1)(A). Plaintiffs filed a consolidated response to the motion on July 25, 1989. See document 85-86 of record. On August 7, 1989, defendants submitted their reply briefs. See documents 92-93 of record.

 Defendants' motions to dismiss and plaintiffs' motion for leave to file a third amended complaint are now ripe for disposition. The court will address these motions in seriatim.

 DISCUSSION

 Motions to Dismiss

 In reviewing a motion to dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). The complaint may be dismissed only if it appears that plaintiffs cannot establish any set of facts in support of their claims which would entitle them to relief. Truhe v. Rupell, 641 F. Supp. 57, 58 (M.D. Pa. 1985) (Rambo, J.). Because plaintiffs assert several claims against defendants, each claim must be examined in seriatim to determine if that claim should withstand a motion to dismiss. Kuchka v. Kile, 634 F. Supp. 502, 506 (M.D. Pa. 1985) (Nealon, C.J.).

 (1) RCRA

 Under section 3006 of RCRA, 42 U.S.C. § 6926, a state is authorized to develop a state hazardous waste program. Upon the approval of the Administrator of the EPA, "such State is authorized to carry out such program in lieu of the Federal program under [subchapter III of Title 42, Chapter 82] in such State and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste. . . ." Id. § 6926(b). Pennsylvania received authorization to operate its hazardous waste program in lieu of the federal program effective January 30, 1986. See 51 Fed. Reg. 1791 (Jan. 15, 1986) (attached as Exhibit C to document 48 of record).

 In its previous Memorandum, the court dismissed portions of plaintiffs' RCRA count based on section 3006(b). The court stated as follows:

 
With the exception of paragraph 85(e) of Count III in the amended complaint, the violations that plaintiffs allege defendants have committed are found in the applicable subchapter and have thus been superseded by Pennsylvania's state program. Cf. Thompson v. Thomas, 680 F. Supp. 1, 3 (D.D.C. 1987) ("The EPA has authorized the State of Wisconsin to administer and enforce its own hazardous waste program in lieu of the federal program dealing with hazardous wastes. Thus, the violations which the plaintiff alleges 3M has committed under the federal regulations promulgated under RCRA have been superseded in Wisconsin by the state regulations"). These paragraphs must therefore be dismissed.

 In their second amended complaint, plaintiffs do attempt to save their RCRA claim by substituting alleged violations of Pennsylvania's Solid Waste Management Act, 35 P.S. §§ 6018.101-6018.1003 (hereinafter SWMA), and its applicable regulations for the previously alleged violations of the substantive provisions of RCRA. See document 70 of record, at paras. 85-90. In their current motions to dismiss, defendants argue that a RCRA citizen suit may not be based on provisions of Pennsylvania law because those provisions have not "become effective pursuant to [RCRA]." See document 81 of record; see also 42 U.S.C. § 6972(a)(1)(A) ("any person may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to [chapter 82 of Title 42, see 42 U.S.C. §§ 6901-6986]. . . ." 42 U.S.C. § 6972(a). The court must disagree with defendants.

 Section 3006 of RCRA is contained in chapter 82. See 42 U.S.C. § 6926. It is section 3006 that authorizes states to develop and enforce their own hazardous waste programs and to operate those programs "in lieu of the federal program. . . ." See id. § 6926(b) ("Any State which seeks to administer and enforce a hazardous waste program pursuant to this subchapter. . .") (emphasis added). Thus, as noted in McClellan v. Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182 (E.D. Cal. 1988), it is at least arguable that a state statute "could . . . have become effective pursuant to RCRA," thus making a citizen suit proper, "if it is part of a state hazardous waste program that has been authorized by EPA under section 3006 of RCRA. . . ." Id. at 1190-1191.

 The actions taken by the EPA in approving state programs under section 3006 of RCRA bolsters this conclusion. For example, the EPA has adopted the practice of incorporating by reference the requirements of state laws and regulations as "part of the hazardous waste management program under Subtitle C of RCRA . . ." upon granting final authorization to the state's hazardous waste management program. See, e.g., 40 C.F.R. §§ 272.1(b), 272.401(a) (Delaware's program), 272.1351(a) (Montana's program). This practice further supports the argument that Pennsylvania's SWMA and accompanying regulations have "become effective pursuant to" chapter 82.

 Moreover, the EPA itself takes the position that a RCRA citizen suit may be brought after a state has received authorization to operate its program in lieu of the federal program. For example, in granting interim authorization to Texas pursuant to section 3006, the EPA responded to a comment regarding the adequacy of the Texas program to provide for public participation in the following manner:

 
EPA believes that RCRA, the Federal regulations and the Texas application provide for a number of important avenues for public participation in hazardous waste management. Consequently, EPA finds that the Texas program, with its new program commitments, satisfies the Federal requirements in this area.
 
Under RCRA, Section 7002, any person may commence a civil action on his own behalf against any government instrumentality or any person who is alleged to be in violation of permits, regulations, conditions, etc. . . . . As a result, any person, whether in an authorized or unauthorized ...

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