The Covingtons sued Jefferson County, Idaho (County) and the District 7 Health Department (D7HD) under the Clean Air Act (CAA)[1] and the Resource Conservation and Recovery Act (RCRA),[2] alleging that actions at the county dump across the street from their home violated both statutes. The Covingtons own property in Jefferson County, Idaho. In 1995, an existing gravel pit across the street from their home was converted to a solid waste landfill under the ownership and operation of Jefferson County. In Idaho, such landfills are overseen by District Health Departments; this particular landfill falls within the oversight of D7HD. The Covingtons made a series of complaints to both Jefferson County and D7HD regarding the operation of the landfill, including mismanagement of discarded appliances (white goods), fires occurring at the dump, and disposal of leaking batteries and oil cans. Although D7HD approved an Operational Plan and conducted numerous inspections, the Covingtons' concerns were not resolved to their satisfaction and they brought a citizen suit under the CAA and RCRA in 2001. This suit alleged that the landfill violated the CAA through noncompliance with federal requirements for disposal of ozone-depleting substances, and violated RCRA by contravening state regulations, not meeting federal requirements for open dumps, and allowing disposal of prohibited non-containerized liquid hazardous waste. The district court found that the Covingtons had standing under RCRA but did not have standing under the CAA. The district court then awarded summary judgment to the defendants on all three RCRA claims. The Covingtons appealed the district court's CAA standing determination and its grant of summary judgment on the RCRA claims; the defendants cross-appealed the district court's RCRA standing determination.

As a preliminary matter, the Ninth Circuit addressed an argument raised by D7HD concerning subject matter jurisdiction. Under RCRA, a citizen suit requires notice as a jurisdictional matter: For present violations, a 60-day notice is required, whereas a suit against any person alleged to have contributed to past or present violations requires a 90-day notice.[3] The Covingtons gave notice to D7HD on May 17, 2001 and filed their complaint on July 25, 2001--comprising a 60-day but not a 90-day period. D7HD thus argued that the court lacked jurisdiction over some if not all RCRA claims. The Ninth Circuit held that it had subject matter jurisdiction over the RCRA claims because 1) current violations fell within the 60-day period, and 2) RCRA contains an exception to the notice provision for subchapter III claims, relating to the leaching of hazardous waste as alleged by the Covingtons.[4] Adopting the Second Circuit's holding in Dague v. City of Burlington,[5] the Ninth Circuit held that the notice exemption applied to all claims in a "hybrid" suit that contains claims based on subchapter III and other claims as long as the claims arose from the same "closely related" circumstances.[6] Thus, the court determined it had subject matter jurisdiction over all RCRA claims.

The Ninth Circuit then determined that the Covingtons had standing to bring their claims under both RCRA and the CAA. The Ninth Circuit outlined the requirements for standing under Article III of the Constitution as a concrete and particularized injury in fact that is actual or imminent, a result of the conduct of the defendant, and redressable. The Ninth Circuit held that the Covingtons showed sufficient evidence of injury in fact under RCRA because they gave evidence that the alleged violation would affect their enjoyment of their home and land due to increased risks of fires, scavengers, and groundwater contamination, in addition to aesthetic injury. The Ninth Circuit noted that the Covingtons also showed causation and redressability as to both Jefferson County and D7HD. Because the County operated the landfill, it caused the injury, and that injury could be redressed by requiring the County to comply with RCRA. D7HD had the ability to suspend operations or compel compliance via inspections at the landfill, and so its inaction met both causation and redressability requirements. The Ninth Circuit rejected D7HD's argument that new state regulations rendered moot any possible remedy, because RCRA claims can be brought for prior violations and the agency retained its regulatory authority in spite of new regulations. Thus the court affirmed the district court's determination that the Covingtons had standing under RCRA.

The Ninth Circuit disagreed with the district court's determination that the Covingtons lacked standing to bring a claim for a leak of ozone-depleting material under the CAA. The Ninth Circuit noted that since the Covingtons brought a procedural claim, they had only to prove a relaxed version of the redressability and imminence of injury requirements. The Ninth Circuit found the Covingtons' evidence of leakage of white goods at the landfill demonstrated injury in fact under the CAA because the potential for harm to the Covingtons' property caused loss of enjoyment. The Ninth Circuit held that evidence provided which showed that the landfill did not follow CAA procedure by either preventing or documenting leaks sufficed to show causation under the CAA. Just as the fines that RCRA provides for violations of the Act were sufficient evidence of redressability under RCRA, the fine and penalty provisions of the CAA showed redressability under the CAA because those penalties were created to compel compliance by the defendants. Thus, the court held that the Covingtons also had standing to bring suit under the CAA.

Having determined the standing issues, the court turned its attention to the substantive RCRA claims. The Covingtons first argued that the district court failed to consider applicable state regulations in determining whether a violation of RCRA had occurred. Under Ashoff v. City of Ukiah,[7] RCRA authorizes citizen suits for violations of state waste management regulations even after the Environmental Protection Agency (EPA) has authorized a state program, as long as the state standards are not tougher than federal standards.[8] Therefore, the Ninth Circuit held that the district court should have addressed whether the Idaho standards were more stringent than federal standards in its discussion of whether the landfill violated RCRA, since Idaho law expressly prohibits regulations that are more stringent than RCRA regulations.[9] The Idaho regulations at issue included a cover requirement[10] and open burning regulations,[11] both of which the Ninth Circuit held were not more stringent than the requirements of RCRA. The Ninth Circuit analyzed the Idaho regulations as to cover on the basis of frequency and amount, and found that even though Idaho's regulations specified six inches of cover at the end of every operating day and the federal regulations required periodic cover but did not specify the amount of cover, the Idaho cover regulations had the same reasoning behind them as did the federal regulations and therefore were not more stringent than the federal regulations. Furthermore, the Ninth Circuit noted that the district court disregarded the Covingtons' proof of violations of the Idaho cover regulations at the landfill, and ruled that summary judgment was inappropriate as unresolved issues of material fact remained. Similarly, the Ninth Circuit decided that Idaho's open burning regulations were very similar to the federal open burning regulations, as both prohibited open burning and provided narrow exceptions to that prohibition; therefore the Ninth Circuit held that summary judgment was inappropriate on the open burning issue because there were unresolved issues of material fact. However, the Ninth Circuit rejected the Covingtons' similar arguments as to Idaho regulations regarding groundwater contamination and explosive gas, because the Covingtons did not point to any state regulations controlling these two issues.

The Ninth Circuit then addressed whether the County and D7HD violated federal open dump regulations under RCRA. The Covingtons presented five potential violations under federal regulations: groundwater contamination, covers, open burning, explosive gases, and access control. The Ninth Circuit upheld the district court's grant of summary judgment for the defendants regarding the Covingtons' allegation that the landfill violated RCRA by contaminating their drinking water because there was not enough evidence of contamination to survive summary judgment. However, the Ninth Circuit reversed the district court's grant of summary judgment for the defendants regarding the Covingtons' allegations that the landfill violated RCRA's cover requirement, ban on open burning, ban on explosive gas buildup, and ban on open access to dumping sites. The Ninth Circuit decided that, based on the Covington's evidence and inspection reports, there was sufficient controversy over whether the landfill met RCRA's cover requirement to conclude summary judgment was not appropriate. In addition, the court believed that the evidence of fires at the landfill presented a question of fact concerning whether the landfill had engaged in burnings that did not fit the narrow exceptions of RCRA. Although the Covingtons could not provide any evidence of the presence of explosive gas, the Ninth Circuit determined this was due solely to the landfill's lack of monitoring for such gas. The Covingtons had established that the landfill received items that could produce explosive gases, so there was a rebuttable presumption that such gas did exist. The court reached this conclusion because plaintiffs in similar suits would otherwise never be able to provide evidence of explosive gas when the operators had failed to monitor for the presence of such gases. Finally, the Ninth Circuit held that the Covingtons presented enough evidence to survive summary judgment on the question of access control to the landfill. The district court found both that access was controlled to an extent and that no public safety issues had arisen from public access. The Ninth Circuit disagreed, deciding that the evidence could lead a fact finder to conclude the partially uncontrolled access led to a public hazard--namely one of the fires which the County claimed was caused by entry of an unauthorized person. Overall, the Ninth Circuit dismissed the Covingtons' claim concerning water contamination but remanded the other four issues for hearing on the merits.

The Ninth Circuit last addressed the Covingtons' claim that the County and D7DH had violated RCRA by allowing the disposal of noncontainerized liquid hazardous waste in the landfill. The district court determined that RCRA's provision prohibiting the disposal of noncontainerized hazardous liquid in a landfill[12] did not have any substantive requirements and thus could not be enforced through citizen suit. While the Ninth Circuit noted that before the 1984 amendments RCRA did not have any substantive requirements, it pointed out that the 1984 amendments added substantive requirements to RCRA. The Ninth Circuit stated the statute was substantive because it proscribed conduct, therefore creating a duty to not carry out such conduct. In addition, the court pointed to the scheme Congress intended, prohibiting some waste disposal and permitting other waste disposal. Finding that refusing to enforce such a regulation would contravene the regulatory framework, the Ninth Circuit upheld the right of the Covingtons to claim a violation of the provision via citizen suit. Thus, overall the Ninth Circuit determined the Covingtons had standing under both RCRA and the CAA, and remanded the majority of the RCRA claims to the district court for further proceedings.

Circuit Judge Gould concurred and wrote separately to identify alternative grounds for standing the Covingtons might have under the portion of the CAA regarding chlorofluorocarbon (CFC) disposal and ozone degradation. Pointing out the atmospheric lifespan of ozone-depleting gases, Judge Gould would find injury because the degradation of the ozone layer would affect all life on earth. Even though this type of injury is not as specific as the general requirement for injury in fact, Judge Gould noted that so long as injury is concrete, it can provide injury in fact for the purpose of standing, and "a widespread injury, in itself, is no bar to constitutional standing."[13] Judge Gould also noted that the scientific link between CFCs and ozone depletion would satisfy the causation requirement for standing, and that since the release of CFCs creates the risk of greater exposure to radiation, the injury was imminent. Finally, Judge Gould noted that the CAA's penalties satisfied the redressability requirement by deterring violations.