Saturday, December 23, 2006

First Circuit Case on RCRA Citizen Suits: Possible Relevance to the Columbia?


In this 12/22/06 opinion, the U.S. Court of Appeals for the 1st Circuit upheld a district court decision ordering a risk assessment of mercury contamination in the Penobscot River. (HT to Howard Bashman at How Appealing)

From 1967 to 1982, Mallinckrodt, then called International Minerals and Chemicals Corporation, owned and operated a chlor-alkali plant (the Plant) situated on the banks of the Penobscot River in Orrington, Maine. Thereafter, the Plant continued operations under other owners, namely, Hanlin Group, Inc. and HoltraChem Manufacturing Co.,2 until it closed in 2000. During the period of its operation, the Plant deposited tons of mercury laden waste into the Penobscot River.[p.3]

To evaluate the feasibility of remediation

[A] 1993 consent decree contemplated a tripartite process comprising site investigation, evaluation of possible corrective measures, and remediation. In line with the first phase of this process, Mallinckrodt compiled and submitted a site investigation report. In March of 1997, EPA and MDEP, acting in concert, issued a draft notice of disapproval. Mallinckrodt countered with a supplemental site investigation report but, in 2000, EPA and MDEP again disapproved. Among other things, the regulators instructed Mallinckrodt to study the effects of mercury downriver from the Plant. Within a matter of months, Mallinckrodt commissioned a study aimed at examining downriver mercury contamination. It conducted a second downriver study during the summer of 2001. Notwithstanding the submission of these studies, however, the district court supportably found that Mallinckrodt made only minimal efforts to pursue the designated line of inquiry and that the decision to forgo more vigorous efforts was deliberate. [cit. omitted] In the midst of this sparring, two environmental groups — the National Resources Defense Council and the Maine People's Alliance — joined forces to commence a citizen suit under RCRA § 7002(a)(1)(B). The plaintiffs alleged that mercury contamination downriver from the Plant "may present an imminent and substantial endangerment to health or the environment." Acknowledging the possibility that remediation might eventually prove to be either unnecessary or infeasible, their principal prayer for relief was that Mallinckrodt be ordered to fund an "independent, comprehensive, scientific study to determine the precise nature and extent of the endangerment."[p. 4]

This case revolves around the meaning and purport of RCRA § 7002(a)(1)(B), a statute that ... allows citizens to sue persons or firms whose handling of solid or hazardous waste "may present an imminent and substantial endangerment to health or the environment." Id. The district court read this language as meaning that such suits could be brought to alleviate reasonable medical or scientific concerns. Me. People's Alliance, 211 F. Supp. 2d [237] at 252. Mallinckrodt urges a more circumscribed interpretation. [p.19]

The Court, at footnote 11, does remind us, however:

that a private party can[not]interfere with an EPA prosecution or disturb the finality of a negotiated settlement. ... See Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320, 1323-25 (7th Cir. 1992).
Has the Teck Cominco-EPA agreement with respect to Lake Roosevelt foreclosed the possibility of a similar citzen suit for mercury contamination in the Columbia? This agreement is highly unusual in that it is a contract between a foreign company and a US government agency. Is it a "negotiated settlement"?