The Ninth Circuit has held that RCRA's jurisdictional citizen suit pre-filing notice requirements set forth at 42 U.S.C. §6972(b) are not applicable to RCRA suits that contain both subchapter and non-subchapter III claims, where such claims are "related in time and location." Covington v. Jefferson County (No. 02-36000, February 5, 2004). The decision signals a reluctance by the court to use procedural roadblocks to impede serious hazardous and non-hazardous waste claims that endanger public health and the environment.
Covington involved an Idaho solid waste landfill, operated and regulated by local authorities, that was located "directly across the street" from plaintiffs' residence. Numerous operational problems plagued the landfill, many of which were admitted by defendants, including improper acceptance and disposal of hazardous waste, fires, failure to monitor or prevent the release of ozone-depleting CFCs, insufficient cover and inadequate security.
After noting that RCRA's citizen suit provisions generally require "notice" before filing suit, that 60- or 90-day notice periods must be provided, depending on the type of RCRA claim involved, and that RCRA's notice provisions are jurisdictional, the Ninth Circuit observed that 42 U.S.C. §6972(b)(2)(A) provides an exception for subchapter III (hazardous waste management) claims: a RCRA claim "may be brought immediately" after notice in an action "respecting a violation of subchapter III of this chapter."
Indeed, the Ninth Circuit went two steps further. First, it adopted the Second Circuit's view that "a subchapter III claim regarding hazardous waste renders the required post-notice waiting period inapplicable to all of a plaintiff's RCRA claims." Covington, 04 C.D.O.S. 1067 at 4 (citing, Dague v. City of Burlington, 935 F.2d 1343, 1352 (2d Cir. 1991) (emphasis in original)). And second, it held that RCRA "hybrid" suits involving both subchapter III and non-subchapter III claims that are "related in time or location (e.g., that the violations all occurred at the same landfill)" are "not subject to any notice provision" (Id. (emphasis added)), suggesting the elimination of not only the post-notice waiting period, but the notice itself.
Covington has strategic implications for RCRA litigants across all industries. For more information on this ruling, please contact Derrick Watson at 415.954.4931, or dwatson@fbm.com. The firm's Environmental Law Department is among the largest and most experienced in the nation, with attorneys specializing in all aspects of environmental litigation and compliance counseling, including state and federal cost recovery actions.