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.