Jenner & Block: Post-Sackett Challenge to U.S. EPA RCRA Order

Jenner & Block: Post-Sackett Challenge to U.S. EPA RCRA Order

   By Steven M. Siros, Partner, Jenner & Block

The first of perhaps many post-Sackett challenges to RCRA orders was filed in the Central District of California in December.  On December 18, 2012, a chemical company (Soco West, Inc.) challenged U.S. EPA's issuance of a RCRA Section 7003 unilateral compliance order.  In its complaint, the chemical company argues that the unilateral order is a final agency action that is subject to review under the Administrative Procedures Act ("APA").  The company seeks to challenge the order on the basis that U.S. EPA's actions in issuing the order were arbitrary and capricious.

Prior to the Supreme Court's decision in Sackett v. EPA, pre-enforcement challenges to unilateral orders were unsuccessful because courts determined that such orders did not constitute final agency action.  In Sackett, however, the Supreme Court found that compliance orders issued under the Clean Water Act ("CWA") constituted final agency action that was reviewable under the APA.  Like the CWA, RCRA does not contain an express prohibition on pre-enforcement review. 

Please click here to view a copy of the complaint filed by Soco West, Inc.  We will continue to provide updates on this case as it progresses.

Read more at Corporate Environmental Lawyer Blog by Jenner & Block LLP.

Lexis.com subscribers can access the Lexis enhanced version of the Supreme Court decision in Sackett v. EPA, 2012 U.S. LEXIS 2320 (U.S. Mar. 21, 2012) with summary, headnotes, and Shepard's.

Lexis.com subscribers can obtain all of the briefs filed in the Supreme Court in Sackett v. EPA, 2012 U.S. LEXIS 2320 (U.S. Mar. 21, 2012).

Lexis.com subscribers can access the transcript of the Oral Arguments before the Supreme Court in Sackett v. EPA, 2012 U.S. LEXIS 2320 (U.S. Mar. 21, 2012).

Lexis.com subscribers can access the Lexis enhanced Ninth Circuit decision in Sackett v. United States EPA, 622 F.3d 1139 (9th Cir. Idaho 2010) with summary, headnotes, and Shepard's.

For more information about LexisNexis products and solutions, connect with us through our corporate site.