Supreme Court Will Hear RCRA Case

The U.S. Supreme Court announced that it will hear a case in which Southern Union, a Texas-based natural gas distributor, was convicted in a U.S. District Court of criminally violating RCRA by knowingly storing 140 pounds of waste mercury without a RCRA permit for over two years in a dilapidated facility in Pawtucket, Rhode Island. While the case is based in an alleged RCRA violation, the Supreme Court is primarily interested in how a lower court ruling that defends the authority of a judge, rather than a jury, to determine the number of days the company was in violation comports with case law.

The case involves two legal arguments. First, whether U.S. EPA had the authority to enforce a Rhode Island regulation that requires that conditionally exempt small quality generators (CESQG) obtain hazardous waste permits. Rhode Island is authorized by EPA to run its own hazardous waste regulatory program. Under RCRA, Rhode Island may also issue regulations that are more stringent than the federal baseline program, which it did with the CESQG permitting requirement. Southern Union asserted that EPA was not legally empowered to enforce Rhode Island’s CESQG provision because it is not part of a federally enforceable state plan. The company also argued that EPA has been “irrationally” inconsistent in its prior pronouncements of EPA's position on the regulation of CESQGs and on which state regulations will receive federal authorization. (More....)