Seventh Circuit Reaffirms Protection of RCRA Citizen Suits

A recent decision by the Seventh Circuit Court of Appeals permitted a citizen suit action brought under Section 7002 (42 U.S.C. § 6972(b)) of the Resource Conservation and Recovery Act ("RCRA") to proceed against a defendant subject to two similar RCRA enforcement actions by a state permitting authority. The decision reaffirms the Seventh Circuit's broad interpretation of the citizen suit provisions found under RCRA and other federal environmental laws like the Clean Water Act ("CWA") allowing citizen suits to proceed despite the existence of: (i) previously filed, but more narrow in scope, state enforcement actions, or (ii) state enforcement actions filed subsequent to a timely filed citizen suit.

In Adkins v. VIM Recycling, Inc.,¹ defendant VIM Recycling ("VIM") sought dismissal of a citizen suit filed in federal court on grounds that the court lacked federal subject matter jurisdiction under RCRA because VIM was already defending the same claims filed by the Indiana Department of Environmental Management ("IDEM") in state court. The citizen suit alleged violations of the illegal disposal of RCRA solid waste - specifically "A," "B" and "C" grade waste. The citizen suit plaintiffs had previously been denied intervention in an existing state enforcement action brought by IDEM alleging similar RCRA violations against VIM. The state court denied intervention to the extent the citizen claims involved wastes other than the "C" grade wastes to which IDEM's state action was limited. Subsequent to the filing of the federal citizen suit, IDEM filed a second lawsuit against VIM in state court alleging illegal dumping of "B" grade waste.

Thus, VIM was faced with the following scenario: defending (i) the first-filed IDEM action involving "C" grade waste in state court; (ii) the second-filed citizen suit action involving "A," "B" and "C" grade waste in federal court; and (iii) the last-filed IDEM action involving "B" grade waste, also in state court. With respect to the first-filed state action, the Seventh Circuit found that, despite the fact that both suits involved allegations of illegal dumping of RCRA solid waste, the citizen suit involved different grades (i.e., grade "A" and "B") of waste not part of the state action and thus was not precluded by the existing state suit.

With respect to the last-filed state action, the Seventh Circuit refused to preclude the citizen suit from proceeding despite the overlapping state action because, consistent with RCRA Section 7002, the citizen suit was filed prior to the state's commencement of its suit.

The court was careful to distinguish its decision from that of the Northern District of Illinois decision in River Village West, LLC v. Peoples Gas Light & Coke Co.,² which reached a contrary conclusion in barring a RCRA citizens suit. The court in River Village relied upon a settlement agreement entered into between the defendant and the U.S. Environmental Protection Agency ("USEPA") under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") to bar an earlier-filed RCRA citizen suit. The district court explained that the language of CERCLA's citizen suit bar expressly precludes any challenge, including RCRA citizen suits, to a removal or remedial action by USEPA, regardless of when the citizen suit was filed. Thus, the Seventh Circuit in Adkins distinguished River Village on statutory grounds - namely, that the CERCLA citizen suit bar applicable in River Village uses different language than the citizen suit bars found under RCRA and the CWA. Only these citizen suit bars include temporal limits that allow citizen suits to proceed that are filed before the government commences and is diligently prosecuting its own action.

The Seventh Circuit's distinction of the River Village decision is notable in that it appears to signal that the court's protection of citizen suits is limited to those federal citizen suit provisions that mimic Section 7002 of RCRA. Thus, for example, to the extent that a government settlement agreement or enforcement action brought under CERCLA conflicts with an existing citizen suit, the Seventh Circuit's decision in Adkins does not establish authority for barring that government action. Nonetheless, the court's ruling is yet another decision reaffirming that a federal or state enforcement action may not act to bar a separate, and even duplicative, citizen suit.

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