Coalition for Health Concern v. LWD, Inc.

60 F.3d 1188
Court of Appeals for the Sixth Circuit·Decided July 27, 1995·No. Nos. 93-6575, 93-6576·Published·Cited by 20 cases

Opinion

HORTON, District Judge.

This ease is before the Court on interlocutory appeal from the United States District Court for the Western District of Kentucky pursuant to 28 U.S.C. § 1292(b) (1988). The-controversy involves a dispute over the licensing and operation of a hazardous waste incineration facility in Calvert City, Kentucky owned by a company known as LWD, Inc. Plaintiffs-appellees failed to persuade the Kentucky agency charged with regulating hazardous waste that LWD’s facility was in violation of federal and state regulations and should be closed. Subsequently, plaintiffs-appellees abandoned all Kentucky administrative proceedings before a decision had been reached and filed this action in the district court.

The issue on appeal is whether the district court, applying the Burford abstention doctrine, properly declined to dismiss plaintiffs’ claims because of the ongoing state administrative proceedings. See, Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The district court, relying on New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (“NOPSI”), concluded it could not dismiss plaintiffs’ claims under Burford unless the claims required significant analysis of state law.

Our review of the record leads us to the conclusion that Kentucky law provides an adequate review process for plaintiffs’ claims and that the exercise of federal jurisdiction and review at this point would be disruptive of Kentucky’s efforts to establish a coherent policy -with respect to the licensing of hazardous waste facilities in that commonwealth. We also find this case distinguishable from NOPSI, supra, and that Burford abstention is appropriate here. Accordingly, we reverse and remand with instructions that the district court dismiss all of plaintiffs’ claims without prejudice except Count III. We conclude the district court should dismiss Count III of plaintiffs complaint for want of jurisdiction under Palumbo v. Waste Technologies Industries, 989 F.2d 156 (4th Cir.1993).

I. The Parties and Claims.

The Defendants-appellants in this case are LWD, Inc. (“LWD”), the owner and operator of a hazardous waste incineration facility, and Phillip J. Shepherd, in his official capacity as Secretary of Kentucky’s Cabinet for Natural Resources and Environmental Protection (the “Secretary” and “Cabinet”). Plaintiffs-appellees, Coalition for Health Concern, Natural Resources Defense Council, Inc., Sierra Club and Ernest Ramey Whitehead (collectively “CHC”), are environmental groups with members who live near the facility and an individual who also lives near the facility. Plaintiffs-appellees brought this action for alleged violations by the Secretary and LWD of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992 (1988) and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675 (1988).

Plaintiffs’ primary claim is that LWD is in violation of RCRA because the facility is [1190]*1190operating without a final “Part B” permit. Plaintiffs allege that under RCRA, as amended, the Part B permit must have been issued or denied by November 8, 1989. See, 42 U.S.C. § 6925(c). Plaintiffs also claim the Secretary failed to perform his statutory duty to either issue or deny LWD’s final “Part B” permit by the November 8, 1989 deadline. Defendants-appellants, in addition to their procedural defenses, contend that LWD is entitled to “interim status” pursuant to 42 U.S.C. § 6925(e) and under state law until a final decision is made on their Part B permit application irrespective of the November 8, 1989 deadline.

The Secretary and LWD both filed motions to dismiss arguing lack of subject matter jurisdiction, the doctrine of abstention and other defenses. The district court denied the motions to dismiss but did, however, dismiss one count of the complaint pursuant to the Burford abstention doctrine. The district court retained jurisdiction over the remaining claims to the extent they did not require an indepth analysis of state law.

Recognizing an immediate appeal might materially advance the ultimate termination of this litigation, the district court certified its decision to this court as appropriate for interlocutory appeal sua sponte. We subsequently granted defendants’-appellants’ petitions for review.

II. RCRA and Kentucky’s Authorized Hazardous Waste Program.

RCRA is a comprehensive regulatory system designed to promote the safe handling of solid and hazardous wastes. See, Palumbo v. Waste Technologies Indus., 989 F.2d 156, 157 (4th Cir.1993). RCRA was amended by the Hazardous and Solid Waste Amendments of 1984, Pub.L. No. 98-616, 98 Stat. 3221 (“HSWA”)(current version at 42 U.S.C. §§ 6901-6992 (1988)), which imposed stricter standards on the owners and operators of hazardous waste treatment facilities to provide better protection for the public and the environment. See, e.g., 42 U.S.C. § 6924. Under RCRA, the United States Environmental Protection Agency (“EPA”) has primary responsibility for implementing its directives; however, the states may enact their own hazardous waste regulatory program. 42 U.S.C. § 6926. If a state elects to enact its own program meeting minimum federal standards and applies for and receives approval from the EPA, then the state program operates in lieu of the federal program. 42 U.S.C. § 6926; see, Palumbo v. Waste Technologies Indus., 989 F.2d 156, 157-58 (4th Cir.1993).

Kentucky enacted its own hazardous waste disposal program, Ky.Rev.Stat.Ann. §§ 224.01-010, et seq. (1991), and thereafter received authorization from the EPA to implement it on January 31,1985. 50 Fed.Reg. 2550 (1985). Counsel to the Secretary indicated Kentucky is authorized to implement the RCRA standards through its own authorized program but has not as yet obtained authorization to enforce the stricter standards imposed by HSWA. HSWA amended RCRA in part by adding the November 8, 1989 deadline language the parties dispute here.

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Coalition for Health Concern v. LWD, Inc., 60 F.3d 1188 (6th Cir. 1995).

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