RCRA Endangerment Claims: A Newway To Regulate Point Source Discharges?

In 1972, Congress enacted the CleanWater Act (CWA), which created, among other things, the National Pollutant Discharge Elimination System (NPDES) of permits that allowed entities to lawfully discharge their wastewater into the nation's surface waters.¹ NPDES permits were both a barrier to unlawful discharges and a shield for lawful ones: dischargers without a permit were subject to enforcement, whereas dischargers with a permit (and in compliance with it) were protected from enforcement and other collateral attack.

This year, in Tennessee Riverkeeper, Inc. v. 3M Co.,² the federal district court for the Northern District of Alabama held that there may be, in effect, a new sheriff in town governing industrial discharges: the Resource Conservation and Recovery Act (RCRA). No matter that a discharge is in compliance with its NPDES permits; the discharge might also have to comply with RCRA's imminent and substantial endangerment ''standard'' as well.³ In the words of the