Last week, a federal district court in Alabama rejected motions to dismiss a RCRA declaratory judgment and injunctive relief action filed by an environmental interest group against a group of defendants including an Alabama manufacturer that formerly used and disposed of materials containing perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”). Tennessee Riverkeeper, Inc. v. 3M Co. et al., No. 16-1029-AKK (Feb. 10, 2017 N.D. Ala.).  This decision follows a chain of increasing regulatory and private scrutiny of PFOA and PFOS.  In May 2016, EPA released more stringent drinking water standards for PFOA and PFOS, and firms that use, used, or disposed of one or both of the chemicals are frequently becoming the targets of regulatory and private enforcement efforts like this one.

In this case, Tennessee Riverkeeper brought suit against 3M, which owns and operates a manufacturing plant in Decatur, Alabama that formerly used the chemicals in its processes. The Plaintiff also named as Defendants BFI and the City of Decatur, both of which own landfills in the area where wastes containing PFOA and PFOS were disposed and, allegedly, not comprehensively contained.

At the time of suit, each Defendant had existing state or federal environmental permits or agreements addressing operations and corrective actions at its facility that it argued precluded the suit. In each case, however, the Court held that at this stage it could not conclusively determine that any of the Defendants’ existing regulatory obligations were sufficiently duplicative of the relief that Tennessee Riverkeeper sought such that the suit should be barred.

3M argued that its ongoing Remedial Action Agreement with the Alabama Department of Environmental Management (“ADEM”), which addresses groundwater treatment, monitoring, and migration prevention at its facility, rendered the suit moot to the extent that it sought duplicative or conflicting relief. The Court rejected the argument, identifying seven areas in which the Plaintiff may be seeking relief different or more stringent relief under RCRA than 3M’s outstanding agreement with ADEM.

The City of Decatur, the owner of a landfill in which the “majority” of the PFOA- and PFOS-containing waste was disposed, argued that its operation and NPDES permits allowed discharge of PFOA and PFOS into the Tennessee River and thus that the Plaintiff cannot prevail against it for taking an action which it is explicitly authorized to take. Likewise, the Court rejected this argument.  It cited three grounds:  (1) that the solid waste operations permit applied to non-hazardous waste and that the Defendants had not demonstrated that PFOA and PFOS were non-hazardous under RCRA; (2) that the factual record did not include sufficient testing to show the amount of PFOA and PFOS in pertinent samples; and (3) that no cited authority prevented a citizen from seeking more stringent relief under RCRA than the restrictions established by an EPA-approved state permit.

All three defendants also asserted arguments that the particular wastes at issue do not qualify as “hazardous” or that they meet one of the exceptions for RCRA’s definition of “solid waste.” The Court rejected these arguments at the motion to dismiss stage, citing the lack of clear legal authority on the issue.

This case demonstrates the need for not only manufacturers but also transporters and disposal facilities across the country to evaluate their treatment and handling of PFOA- and PFOS-containing wastes.

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