DEQ-CFW_00075187

6/19/2017 Motions to Dismiss PFOA/PFOS RCRA Injunctive Relief Action Denied in N.D. Alabama - Lexology
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Motions to Dismiss PFOA/PFOS RCRA Injunctive Relief Action Denied in N.D. Alabama
Slog MGKF Litigation Blog
USA February 16 2017
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 pen -nits 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 suits lioul­d beb­arred ------ -- -�
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 maybe seeking
relief different or more stringent relief under RCRA than 3M's outstanding agreement with ADEM.
The City ofDecatur, the owner of a landfill in which the "majority" of the PFOA- and PFOS-containing waste was disposed, ar ued that
it eration 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�antc ha�djemonstr_ rated 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.
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6/19/2017 Motions to Dismiss PFOA/PFOS RCRA Injunctive Relief Action Denied in N.D. Alabama - Lexology
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.
Manko Gold Katcher & Fox - Garrett D. Trego
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