Covert RCRA enforcement: seeking compensatory damages under the Federal Tort Claims Act for environmental contamination.

• Author: Nelson, Ricky R.
• Position: Resource Conservation and Recovery Act of 1976

1. INTRODUCTION II. BACKGROUND A. The Resource Conservation and Recovery Act. B. The Federal Tort Claims Act C. The Problem of indirect Enforcement III. GETTING AROUND THE DISCRETIONARY FUNCTION EXCEPTION A. The Discretionary Function Exception as a Limit to Claims Against the United States B. Use of Agency Guidelines to Overcome the Discretionary Function Exception 1. Myers v. United States as a Method for "Back Door" RCRA Enforcement Through the FPCA 2. Overcoming the First Berkovitz Prong: Internal Agency Guidelines as Mandatory Authority 3. Overcoming the Second Berkovitz Prong: Following Agency Directives is Nondiscretionary C. How the Problem of Indirect Enforcement Affects the Use of Agency Guidelines as Sources of Authority, Foreclosing the Discretionary Function Exception 1. Overt Versus Covert Mention of RCRA in a FTCA Complaint 2. Overt Versus Covert Mention of RCRA in Agency Guidelines IV. ESTABLISHING NEGLIGENCE A. The Nature of a Negligence Cause of Action 1. How Plaintiffs Normally Establish Negligence 2. How RCRA and Agency Guidelines Can Be Used to Establish Negligence 3. How indirect Enforcement Prevents Use of RCRA B. Covert Use of RCRA 1. What "Covert Use "Involves 2. How "Covert Use" Circumvents Indirect Enforcement C. Use of Hazardous Waste Law in States Authorized to Enforce RCRA 1. Use of the Hazardous Waste Laws in Authorized States 2. Does the Use of State Hazardous Waste Laws Circumvent Indirect Enforcement V. CONCLUSION I. INTRODUCTION

   "Much of the worst pollution in the United States emanates from facilities owned and operated by the federal government." (1)

   Since 1985, federal facilities have proven to be some of the most polluted sites in the United States, and a staggering number of these facilities are responsible for widespread environmental contamination. (2) In 2010, the Department of Defense (DOD) estimated that 4,475 federal sites were either in the cleanup or investigatory phases of the DOD's installation restoration program (IRP). (3) Additionally, and incidental to the IRP sites, 1,528 locations were designated active military munitions response sites (MMRS) housing unexploded ordnance, discarded military munitions, or munitions constituents. (4) The estimated cost to complete the restoration of all IRP sites was $12.8 billion, and another $15.2 billion for the MMRS sites. (5) Combined, that is $28 billion dollars to address environmental contamination at DOD sites alone. The federal government, therefore, is arguably one of the principal causes of environmental contamination in the United States.

   It is logical that the vast amount of environmental contamination caused by the government could result in injuries to citizens living near these facilities. However, injured parties are precluded from seeking compensation from the government unless authorized by a waiver of sovereign immunity. (6) Two waivers of sovereign immunity are key to this Chapter: the Resource Conservation and Recovery Act (RCRA) (7) and the Federal Tort Claims Act (FTCA). (8) The first, RCRA, waives sovereign immunity for three types of citizen suits: 1) to enforce a violation of a permit, standard, or regulation; (9) 2) to abate imminent and substantial endangerments to health or the environment; (10) and 3) to force the United States Environmental Protection Agency (EPA) to perform a nondiscretionary duty. (11) The broad waivers of sovereign immunity granted by RCRA are tempered, however, by the three remedies it allows: 1) imposition of civil penalties paid to the United States; (12) 2) injunctions to restrain RCRA violators; (13) and 3) injunctions to remediate environmental damage if the plaintiff has not yet remedied it himself. (14) Courts are not permitted to award compensatory damages. (15) Parties injured as a result of RCRA violations are, thus without a means to seek money damages if they sue under RCRA alone.

   The FTCA, on the other hand, subjects the United States to tort liability as determined by the law of the place where the act occured. (16) Nonetheless, the discretionary function exception (DFE) bars FTCA suits against the government when alleged misconduct is found to be an act of "discretion." (17) To determine whether an act is discretionary or not, the Supreme Court adopted a two-prong test in Berkovitz v. United States. (18) If a plaintiff can prove that the government either failed to follow mandatory directives, or that its decision was not based on protected policy concerns, the DFE will not immunize the United States from liability. (19) As a result, plaintiffs may recover compensatory damages through an FTCA suit despite the DFE.

   Not surprisingly, citizen plaintiffs have attempted to take a "front door" approach to seeking compensatory damages for RCRA violations using the FTCA, and have argued that RCRA imposes mandatory directives on the government that precludes the DFE. (20) This manner of overt attack, however, results in case dismissal. (21) Violations of RCRA cannot be charged under the FTCA because doing so would amount to "indirect enforcement" and would "adversely affect the RCRA statutory scheme." (22) Hence, injured plaintiffs may not overtly seek compensatory damages from the government for RCRA violations by suing under the FTCA.

   Notwithstanding the government's paradoxical immunity from paying money damages for violating its own environmental mandates, a "back door" manner of environmental enforcement exists. In Myers v. United States, (23) the United States Court of Appeals for the Ninth Circuit held that the DFE did not bar an injured plaintiffs FTCA claim seeking compensatory damages for thallium poisoning suffered during a Navy remediation project. (24) The court found that mandatory directives listed in the Navy's Health and Safety Program Manual (Program Manual) (25) left no room for discretion, and that the standards in the Federal Facility Agreement (FFA) (26) were not based upon protected policy concerns. (27) Consequently, both the Program Manual and the FFA foreclosed application of the DFE. (28) Significantly, thallium is designated as a hazardous waste by RCRA, (29) and because it was released and shot airborne during the remediation project, (30) Myers could have brought suit under RCRA to enjoin the Navy's conduct. (31) However, if she had done so, she would not have been entitled to compensatory damages. By bringing suit under the FTCA instead, Myers was able to seek monetary compensation. The court's holding in Myers is novel because both the Program Manual and the FFA were implemented to keep the remediation project operating in accordance with RCRA. (32) By citing the Program Manual and the FFA, instead of hazardous materials, as well as compliance with health and safety protocols, are the of RCRA itself, Myers overcame the DFE and effectively enforced RCRA through an FTCA suit. Therefore, injured parties may seek compensatory damages for governmental RCRA violations by covertly invoking RCRA standards--implemented through agency guidelines--in an FTCA action.

   This Chapter explores the support for, and the implications of, the Ninth Circuit's holding in Myers. Part II chronicles the legal interpretation of RCRA and the FTCA leading up to Myers, and illuminates specific Supreme Court decisions supporting the use of agency guidelines as a source of mandatory directives. Part III analyzes the DFE, the case of Myers itself, and how indirect enforcement occurs during FTCA litigation. Part IV examines how a prima facie negligence cause of action is articulated, how indirect enforcement arises during negligence claims, and how the laws of EPA-authorized states might circumvent indirect enforcement. Finally, Part V concludes that covert use of RCRA by using agency guidelines to overcome the DFE is supported by the FTCA's statutory language and Supreme Court precedent.

2. BACKGROUND

   That the federal government of the United States is one of the worst environmental polluters in the nation is peculiar. But this oddity approaches the absurd when considering the government's use of sovereign immunity as a defense against paying victims compensatory damages for its environmental pollution. In attempting to defeat this folly, plaintiffs have commonly brought claims under two statutes: RCRA and the FTCA. (33) As noted in Part I, RCRA waives sovereign immunity for citizen suits seeking to enforce permits, abate certain endangerments, and compel the EPA to undertake nondiscretionary duties. (34) Courts may not award compensatory damages under RCRA; (35) however, the following section will describe in greater detail the three remaining remedies that are available for citizens who sue under RCRA: 1) penalties payable to the United States, (36) 2) injunctions to restrain RCRA violators, (37) and 3) injunctions to remediate damage if the plaintiff has not yet remedied it himself. (38) The second statute, the FTCA, waives sovereign immunity for state law negligence claims and allows plaintiffs to seek compensatory damages. (39) And although it may appear that injuries to persons or property resulting from negligent violations of RCRA might render violators liable under the FTCA, this is not the case. The remedial schemes of these two statutes are mutually exclusive. (40)

   This Part will first examine the relevant provisions of RCRA, including analysis of its citizen suit provision, the three forms of relief it provides, and an explanation of how these forms of relief are insufficient to provide injured plaintiffs with compensatory damages. Next, this Part will survey the pertinent text of the FTCA, its authorization for awards of compensatory damages, and the DFE. Finally, this Part will conclude with a description of the indirect enforcement problem, which prevents RCRA from being overtly invoked in an FTCA suit.

   1. The Resource Conservation and Recovery Act

      In an attempt to "eliminate the last remaining loophole in environmental law," Congress...