First Circuit adopts expansive reading of RCRA citizen suit provision
January, 2007
In a ruling that environmental groups predict will breathe new life into the Resource Conservation and Recovery Act ("RCRA"), the First Circuit Court of Appeals recently concluded that citizens may file suit under the Resource Conservation and Recovery Act ("RCRA")[i] when there is "a reasonable prospect of future harm ... so long as the threat is near-term and involves potentially serious harm."[ii] Joining four other Courts of Appeal, the First Circuit in Maine People's Alliance v. Mallinckrodt, Inc. rejected the defendant's contention that such an expansive reading of the RCRA's citizen suit provision usurps EPA's policy-making role and allows citizens to collaterally attack EPA's risk assessments for existing RCRA sites. Mallinckrodt will now be required to undertake an extensive, and expensive, study to assess mercury contamination downriver of Mallinckrodt's former chlor-alkali plant.
Background
From 1967 to 2000, Mallinckrodt, Inc. and its successors[iii] operated a chlor-alkali plant (the "Plant") on the banks of the Penobscot River in Orrington, Maine and deposited tons of mercury-laden waste into the river. A series of RCRA enforcement actions by EPA beginning in 1986 led to Mallinckrodt's investigation of the site under the terms of a 1993 consent decree. In 2000, EPA and the Maine Department of Environmental Protection ("MDEP") directed Mallinckrodt to study the effects of mercury downriver from the Plant, which it did in 2000 and again in 2001.[iv]
Contending that Mallinckrodt "made only minimal efforts to pursue the designated line of inquiry" and deliberately decided "to forgo more vigorous efforts,"[v] two environmental groups, the Maine People's Alliance and the Natural Resources Defense Council (collectively, "MPA") joined forces and filed suit under the citizen suit provision of RCRA,[vi] alleging that the mercury contamination downriver from the Plant may represent an imminent and substantial endangerment to health or the environment. MPA asked the court to order Mallinckrodt to fund an "independent, comprehensive scientific study [of the lower Penobscot] to determine the precise nature and extent of the endangerment."[vii]
The District Court Decision
In response, Mallinckrodt first argued that MPA's suit should be dismissed because EPA, and not the court, had primary jurisdiction. The district court denied Mallinckrodt's motions, holding that the suit would not conflict with agency action because of EPA's "apparent lack of interest in the lower Penobscot."[viii] During the subsequent nine-day trial in 2002, MPA offered expert testimony that mercury in the lower Penobscot sediments was "methylating" – being transformed by microscopic organisms into its organic form, methylmercury – and was bioavailable, entering biota, and biomagnifying throughout the food web.[ix] The district court concluded that in light of the evidence of the threat posed by methylmercury to humans and the "lenient" standard for RCRA citizen suits, MPA's evidence and expert testimony demonstrated the existence of a "reasonable medical concern for public health and a reasonable scientific concern for the environment" sufficient to satisfy MPA's burden of proof.[x]
The district court then directed the parties to make a good faith effort to agree on a study plan.[xi] In 2005, the court approved the plan, which will likely cost Mallinckrodt $4 million for laboratory analyses alone, independent of all other costs, and is intended to learn whether mercury contamination in the lower Penobscot adversely affects either human health or the environment and, if so, outline a feasible remedial approach.[xii]
The Appeal
On appeal to the First Circuit, Mallinckrodt advanced three main arguments: (1) MPA lacked standing because it had failed to establish injury-in-fact; (2) the district court "set the bar too low for RCRA citizen suits;" and (3) the district court abused its discretion in fashioning relief.[xiii]
Standing: Challenges to the Scope of the Court's Authority
Mallinckrodt argued that MPA did not have standing because the harm it alleged was "probabilistic" and therefore MPA could not establish that it had suffered an injury-in-fact. MPA offered the testimony of four of its members that they no longer eat fish or shellfish from the river, nor recreate on or near the river, because of the mercury contamination. The Court of Appeals concluded that an individual's decision to deny herself recreational or aesthetic pleasures based on a concern over pollution, as the MPA members had, is sufficient to establish cognizable injury where the concern is premised upon a realistic threat.[xiv]
Mallinckrodt also argued that "courts are not equipped to determine whether ‘the medical and scientific uncertainties created by mercury in the Penobscot create an unacceptable increased risk of harm,'"[xv] in the absence of a finding by EPA that the amount of mercury contamination in Penobscot River sediments was injurious. Responding to Mallinckrodt's argument, which the Court of Appeals described as "a no-holds barred assault on the federal courts' institutional competency,"[xvi] the First Circuit concluded that the district court was acting well within both the framework created by Congress in creating the RCRA citizen suit provision, and the courts' "accustomed domain" and "institutional competency" in assessing probabilistic environmental injuries. The Court went on to explain in no uncertain terms, "While courts can (and do) benefit from available agency expertise, it is an insupportable leap of logic to maintain that, in the absence of such input, claims of injury are not cognizable at all."[xvii]
Finally, Mallinckrodt argued that a finding that MPA had standing would be "tantamount to a judicial usurpation of regulatory authority" because permit private parties would be able to collaterally attack EPA's risk assessments, relying on risks that EPA deems acceptable to establish standing and liability, with no deference afforded to EPA's policy judgment.[xviii] Rejecting this argument, the Court of Appeals concluded that Congress had created a cause of action for affected citizens notwithstanding the absence of any EPA-sponsored standard upon which to measure liability, and a court's refusal to undertake a task entrusted it by Congress would, itself, usurp the legislature's prerogative.[xix]
Standard for RCRA Citizen Suits: Separation of Powers Argument
Mallinckrodt next asserted that the district court's interpretation of RCRA § 7002(a)(1)(B) would permit citizen suits where EPA has already determined that no action is required because the risk of harm was low. Allowing such cases to proceed, Mallinckrodt contended, would violate the separation-of-powers doctrine because, by affording relief based upon harms that EPA has deemed acceptable, courts, rather than EPA, would be setting environmental standards.[xx] The Court of Appeals rejected Mallinckrodt's argument, pointing out that the facts of the case demonstrated that allowing MPA's citizen suit was not "the functional equivalent of allowing courts to hijack EPA's regulatory authority and weave safety standards out of whole cloth."[xxi] EPA had not adopted media protection standards for the river that would have precluded remediation, nor was it EPA's position that remediation of contamination from the Plant was bad policy. Moreover, while the district court had previously considered and "thoughtfully rejected" Mallinckrodt's primary jurisdiction challenges, the court had allowed for the contingency that, consistent with RCRA's statutory scheme, future enforcement by EPA might give rise to renewed consideration of primary jurisdiction concerns.[xxii]
The Remedy
Following a nine-day trial and finding of liability, the district court ordered Mallinckrodt to fund a study of the lower Penobscot. Challenging this remedy on appeal, Mallinckrodt argued that the district court failed to balance the enormous cost of the study with the minimal benefit to be gained by MPA if such a study determined that no remediation of the lower Penobscot was necessary. In disposing of this final challenge, the First Circuit held that the federal courts have broad and flexible equity powers in cases where hazardous wastes threaten human health, and as such, the traditional weighing of burdens and benefits is not strictly applied. Rather, the Court explained, there is "a congressional thumb on the scale in favor of remediation." Although the court acknowledged that there may be some circumstances in which the costs of a particular remedial plan might be so vastly disproportionate to the potential benefits to the environment or human health as to warrant a "recalibration of the balance," that was not the case here.[xxiii]
Reaction
MPA called the decision "a stunning victory" and "an important legal precedent" noting that it is "the first time an industrial polluter had been held responsible for contaminating natural resources downstream of a plant site. . ."[xxiv] The decision may lead to greater use of the RCRA citizen suit provision by environmental groups, who were already citing the district court opinion in other RCRA citizen suits that argued EPA cleanup was inadequate.[xxv] And, given the thoroughness of the First Circuit's analysis, the decision is likely to quickly become one of the Court's most frequently cited RCRA decisions.
For more information, contact Connie Sue Martin.
[i] RCRA §7002(a)(1)(B), 42 U.S.C. §6972(a)(1)(B).
[iii] From 1967 to 1982 Mallinckrodt, then known as International Minerals and Chemicals Corp., owned and operated the Plant on the banks of the Penobscot River in Orrington, Maine. Between 1982 and 2000, when the Plant closed, the Plant was operated by other owners: Hanlin Group, Inc. and HoltraChem Manufacturing Co. In 1986, EPA filed an administrative RCRA action against Hanlin, resulting in an agreement for corrective measures. Hanlin sued Mallinckrodt for contribution, and in a 1991 settlement Mallinckrodt agreed to pay a portion of the compliance costs imposed by Hanlin's agreement with EPA. A 1993 consent decree superseded Hanlin's agreement. Consistent with its 1991 settlement agreement, Mallinckrodt paid its share of compliance costs and participated in ongoing negotiations with EPA and MDEP. Opinion at 3 - 5. Mallinckrodt was determined to have been a "dominant source" of mercury contribution to the Penobscot. Maine People's Alliance v. Holtrachem Mfg. Co., 211 F. Supp.2d 237, 253 (D. Maine 2002).
[vi] RCRA § 7002(a)(1)(B).
[x] 211 F.Supp.2d 237, 251-52 (D. Maine 2002).