Case 8:21-cv-01521-WFJ-CPT Document 1 Filed 06/24/21 Page 1 of 78 PageID 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`Case No. 8:21-cv-1521
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`CENTER FOR BIOLOGICAL
`DIVERSITY, TAMPA BAY
`WATERKEEPER, SUNCOAST
`WATERKEEPER, MANASOTA-88, and
`OUR CHILDREN’S EARTH
`FOUNDATION,
` Plaintiffs,
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` v.
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`GOVERNOR RON DeSANTIS,
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`and
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`SHAWN HAMILTON, in his official capacity
`as ACTING SECRETARY, FLORIDA
`DEPARTMENT OF ENVIRONMENTAL
`PROTECTION,
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`and
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`HRK HOLDINGS, LLC,
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`and
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`MANATEE COUNTY PORT
`AUTHORITY,
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` Defendants.
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`I.
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`INTRODUCTION
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`1.
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`For decades, Defendants have known that the Piney Point Phosphate Facility
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`(“Piney Point”) threatens imminent and substantial endangerment to Floridians’
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`lives, health, and environment. Described as a “ticking time bomb” by Senator
`COMPLAINT
`Case No. 8:21-cv-1521
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`Case No. 8:21-cv-1521
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`CENTER FOR BIOLOGICAL
`DIVERSITY, TAMPA BAY
`WATERKEEPER, SUNCOAST
`WATERKEEPER, MANASOTA-88, and
`OUR CHILDREN’S EARTH
`FOUNDATION,
` Plaintiffs,
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` v.
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`GOVERNOR RON DeSANTIS,
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`and
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`SHAWN HAMILTON, in his official capacity
`as ACTING SECRETARY, FLORIDA
`DEPARTMENT OF ENVIRONMENTAL
`PROTECTION,
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`and
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`HRK HOLDINGS, LLC,
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`and
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`MANATEE COUNTY PORT
`AUTHORITY,
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` Defendants.
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`I.
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`INTRODUCTION
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`1.
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`For decades, Defendants have known that the Piney Point Phosphate Facility
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`(“Piney Point”) threatens imminent and substantial endangerment to Floridians’
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`lives, health, and environment. Described as a “ticking time bomb” by Senator
`COMPLAINT
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`Case 8:21-cv-01521-WFJ-CPT Document 1 Filed 06/24/21 Page 2 of 78 PageID 2
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`Marco Rubio, the wastewater infrastructure at Piney Point is inadequate and
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`incapable of treating all the wastewater and stormwater accumulating at the site; the
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`impoundments (sometimes referred to as “reservoirs”) retaining hundreds of millions
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`of gallons of wastewater are leaking and are at risk of further catastrophic failure; and
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`the single, inadequate plastic liner overlaying the hazardous phosphogypsum stacks
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`is tearing, cracking, ripping, and failing, creating direct pathways for dredged
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`material from the Port Manatee Berth 12 expansion project and precipitation to leach
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`beneath the liner, where it mixes and comingles with radioactive and toxic waste.
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`2.
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`Defendants correctly predicted that the impoundments at Piney Point could
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`not safely retain anticipated precipitation and stormwater. Nevertheless, Defendants
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`took no corrective action to redress this known risk. As such, in April 2021,
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`Defendants chose to discharge at least 215 million gallons of untreated, hazardous
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`wastewater directly into Tampa Bay. As of the filing of this complaint, that nutrient-
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`laden pollution has triggered the beginnings of a harmful algae bloom with
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`associated fish kills, putting Tampa Bay, neighboring waterways, and all Floridians
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`that make use of these impacted waterways in jeopardy.
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`3.
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`Defendants’ malfeasance must stop. Plaintiffs are public interest organizations
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`focused on securing and safeguarding Floridians’ health and the environment. They
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`bring this lawsuit to ensure Piney Point is operated and closed in a manner that
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`complies with the Resource Conservation and Recovery Act and abates the present
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`imminent and substantial endangerment to human health and the environment,
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`including endangered species such as manatees and sea turtles.
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`II.
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`JURISDICTION AND VENUE
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`4.
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`This Court has jurisdiction pursuant to the Resource Conservation and
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`Recovery Act (“RCRA”), 42 U.S.C. § 6972(a). This Court also has jurisdiction under
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`28 U.S.C. § 1331 (federal question).
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`5.
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`As required by RCRA, 42 U.S.C. § 6972(b)(2)(A), Plaintiffs provided pre-suit
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`notice of their intent to sue on Defendants via Registered Mail, return receipt
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`requested. That notice was served on May 17, 2021. A copy of Plaintiffs’ Notice of
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`Intent to Sue is attached hereto as Exhibit A.
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`6.
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`Pursuant to 42 U.S.C. § 6972(b), Plaintiffs bring this suit prior to expiration of
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`the statutory 90-day notice period. Id. (“No action may be commenced under
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`subsection (a)(1)(B) of this section prior to ninety days after the plaintiff has given
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`notice of the endangerment…except that such action may be brought immediately
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`after such notification in the case of an action under this section respecting a
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`violation of subchapter III of this chapter.”). Plaintiffs allege herein that Defendants’
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`actions and omissions at Piney Point have caused solid and otherwise exempt1
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`hazardous waste to mix and comingle, creating a new material that satisfies the
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`1 Pursuant to the “Bevill” amendment, phosphogypsum stacks and related process wastewater are
`typically exempt from RCRA’s hazardous waste regulations. See 40 C.F.R. § 261.4(b)(7)(D).
`Defendants’ actions and omissions at Piney Point, as alleged herein, vitiate that exemption.
`COMPLAINT
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`statutory and regulatory definitions of hazardous waste.
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`7.
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`This Court has the authority to grant declaratory relief pursuant to the
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`Declaratory Judgment Act, 28 U.S.C. § 2201, et seq.
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`8.
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`Venue is proper in this district under 42 U.S.C. § 6972(a) because the alleged
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`violations occurred in the United States District Court for the Middle District of
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`Florida. Piney Point is located at 13300 Highway 41 North, Palmetto, FL 34221.
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`9.
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`Neither the United States Environmental Protection Agency nor the State of
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`Florida has commenced an action concerning Piney Point under RCRA, the
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`Comprehensive Environmental Response, Compensation and Liability Act
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`(“CERCLA”), 42 U.S.C. § 9604, incurred costs to initiate a Remedial Investigation
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`and Feasibility Study under Section 104 of the CERCLA, or obtained a court order
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`or issued an administrative order under Section 106 of CERCLA. See 42 U.S.C. §
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`6972(b)(2)(B) & (C).
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`III. PARTIES
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`Plaintiffs
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`10. Plaintiffs are not-for-profit, public interest organizations whose members who
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`live, work, and recreate in the State of Florida. Plaintiffs share similar interests in
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`improving, protecting, and preserving regional water bodies and groundwater.
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`11. Plaintiff Center for Biological Diversity (the “Center”) is a national, not-for-
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`profit conservation organization with offices throughout the United States. The
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`Center has more than 84,000 members nationwide, and thousands in Florida, with
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`many living near and recreating in Tampa Bay. The Center is dedicated to the
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`protection of native species and their habitats through science, policy, and law. The
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`Center has an office in St. Petersburg, Florida.
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`12. The Center and its members are directly injured and harmed by Defendants’
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`violations of RCRA. The Center has members that live, work, and recreate in
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`proximity of Piney Point. These members also make use of the waterways and
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`natural areas in proximity to Piney Point for recreational, aesthetic, and related
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`purposes. These members’ aesthetic, recreational, and other constitutionally-
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`protected interests are injured by Defendants’ actions and omissions at Piney Point.
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`a. For instance, the Center has two members who routinely recreate in
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`Tampa Bay and its wild areas, and know first-hand how devastating a
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`harmful algae bloom can be for these fragile ecosystems. These
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`members are long-term volunteers for Tampa Bay’s National Wildlife
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`Refuges, something they do for recreational enjoyment and in
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`furtherance of their after-retirement professional pursuits. They have a
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`deep appreciation for Tampa Bay and the diverse wildlife that inhabits
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`it. They conduct monthly bird inventories for the Refuges and have
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`together donated in excess of 15,000 hours of time protecting and
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`preserving these critical places for Tampa Bay. They are significantly
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`concerned about how pollution discharged from Piney Point affects
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`Tampa Bay and its inhabitants, including the marine wildlife they hold
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`dear and enjoy watching, such as manatees, sea turtles, sea birds, and
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`dolphins. These members witnessed birds, fish, and other wildlife suffer
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`during the red tide event in Tampa Bay in 2018. These members are
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`concerned that the pollution from Piney Point will create additional
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`harmful algae blooms. One of these members has their health impacted
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`by harmful algae blooms, which cause respiratory and sinus problems in
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`addition to their offensive odors. As a result, this member has
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`reluctantly curtailed their monthly trips to the Refuges and ceased
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`recreating in Tampa Bay. The other member is also a lifelong boater
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`and angler. The member no longer consumes fish that they obtain from
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`Tampa Bay because of their concerns about the pollution at Piney
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`Point; their enjoyment of fishing is also lessened knowing that
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`Defendants discharged millions of gallons of harmful pollution into
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`Tampa Bay. These members would like to take their 22-foot, shallow-
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`draft boat into and around Tampa Bay, both for recreating by bird and
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`other wildlife watching and for taking friends and family out on the
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`water, but refrain from doing so because of the pollution at Piney Point.
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`These members’ constitutionally-protected interests have been injured
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`COMPLAINT
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`by the pollution originating at Piney Point.
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`b. The Center has another member that lives near waters impacted by
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`pollution from Piney Point, and experienced the devastating algae
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`blooms in Tampa Bay in 2018. This member and her family enjoy
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`recreating in Tampa Bay, including kayaking and paddle boarding. The
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`member’s enjoyment of these activities in and around Tampa Bay has
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`been lessened due to the discharges and environmental catastrophe
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`threated by Piney Point. The member has already noticed high levels of
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`lyngbya in the areas where the member paddles and kayaks, lessening
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`her enjoyment of those activities. The member finds the smell of the
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`lyngbya mats offensive and does not want to paddle in waters impacted
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`by lyngbya or harmful algae blooms for fear of the impacts they could
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`have on the member’s health and wellbeing. The member is involved in
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`a turtle watch organization and is very concerned about how sea turtles
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`will be injured by additional pollution and harmful algae blooms caused
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`by Piney Point’s discharges. The member volunteers doing inventories
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`for horseshoe crabs, and has started observing lyngbya and other algae
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`bloom precursors in Robinson Preserve and elsewhere. The member
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`also volunteers for a wildlife rescue organization, where the member
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`has witnessed first-hand the impacts of harmful algae blooms on
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`seabirds and other wildlife. This member’s constitutionally-protected
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`recreational and aesthetic interests are injured by Defendants’ violations
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`of RCRA and discharges into Tampa Bay.
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`c. The Center has a member that routinely recreates in close proximity to
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`Piney Point. This member canoes the marine waters near Piney Point
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`that have been directly impacted by the discharges from Piney Point.
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`The member enjoys the aesthetic beauty of the area and particularly
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`likes birdwatching. This member previously volunteered during the last
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`red tide event cleaning up dead fish from the beaches of the area. The
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`member’s recreational and aesthetic interests are injured by Defendants'
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`violations of RCRA at Piney Point, because this member’s enjoyment
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`of canoeing and birdwatching is lessened knowing there are harmful
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`pollutants in the water caused by Defendants’ actions and omissions at
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`Piney Point. This member had definite plans to canoe the area this year,
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`but has modified those plans because the discharges from Piney Point
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`reduce the member’s recreational and aesthetic enjoyment.
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`Additionally, this member is concerned that a catastrophic collapse
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`could cause the member serious bodily injury or death.
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`13. Plaintiff Tampa Bay Waterkeeper (“TBWK”) is a Florida not-for-profit
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`corporation with members throughout Tampa Bay. TBWK is dedicated to protecting
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`and improving the Tampa Bay watershed while ensuring swimmable, drinkable, and
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`fishable water for all. TBWK’s approach combines sound science, policy advocacy,
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`grassroots community engagement, and education to stand up for clean water
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`together as a community, ensuring a clean and vibrant future for the Tampa Bay
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`watershed. To further its mission, TBWK actively seeks federal and state
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`implementation of environmental laws, and, where necessary, directly initiates
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`enforcement actions on behalf of itself and its members.
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`14. TBWK has been registered as a not-for-profit corporation in Florida since
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`2017. TBWK is a licensed member of Waterkeeper Alliance, Inc., an international
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`not-for-profit environmental organization, made up of some 350 separate
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`Waterkeeper programs, such as TBWK.
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`15. Tampa Bay Waterkeeper and its members are injured and harmed by
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`Defendants’ violations of RCRA. Tampa Bay Waterkeeper has members that live,
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`work, and recreate in proximity of Piney Point. These members also make use of the
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`waterways and natural areas in proximity to Piney Point for recreational, aesthetic,
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`and related purposes. These members’ aesthetic, recreational, and other
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`constitutionally-protected interests are injured by Defendants’ actions and omissions
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`at Piney Point.
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`a. For instance, Tampa Bay Waterkeeper has a member that routinely
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`utilizes Tampa Bay, Bishop Harbor, and other waters near Piney Point
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`that are impacted by Defendants’ pollution. This member recreates in
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`these waterways by boating, fishing, and otherwise enjoying and
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`observing the marine wildlife that are endemic to Tampa Bay. This
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`member’s constitutionally-protected recreational and aesthetic interests
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`are injured by Defendants’ violations of RCRA, because this member
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`fears how the pollution from Piney Point degrades water quality and
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`threatens significant health risks. Because of Defendants’ violations of
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`RCRA, this member has curtailed their use and enjoyment of impacted
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`waters.
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`b. Tampa Bay Waterkeeper has another member that operates a leasehold
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`in Tampa Bay close to Piney Point, where the member raises and
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`harvests oysters for commercial and personal consumption. The
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`member’s individual and business interests are injured as a result of
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`Defendants’ violations of RCRA and the pollution from Piney Point.
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`The member was required to cease all shellfish operations by the State
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`of Florida due to impaired water quality, including exceedances for the
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`organisms that are responsible for harmful algae blooms. The member
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`has suffered business losses as a result. Additionally, this member is a
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`life-long Floridian and routinely recreates in and around Tampa Bay,
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`including boating. The member’s recreational interests are injured, as
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`the member’s recreational enjoyment of the waters of Tampa Bay are
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`lessened knowing that Defendants’ pollution from Piney Point has
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`contaminated its waters and contributed nutrients that will lead to
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`additional harmful algae blooms.
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`16. Plaintiff ManaSota-88 is a Florida not-for-profit, public interest corporation.
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`ManaSota-88 has spent over 50 years fighting to protect Florida’s environment. It is
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`dedicated to protecting the public's health and preservation of the environment.
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`ManaSota-88’s is committed to safeguarding Floridians’ air, land, and water quality.
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`17. ManaSota-88 has members that work, live, and recreate in proximity of Piney
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`Point. These members also make use of the waterways and natural areas in
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`proximity to Piney Point for recreational, aesthetic, and related purposes. These
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`members’ aesthetic, recreational, and other constitutionally-protected interests are
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`injured by Defendants’ actions and omissions at Piney Point.
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`a. For instance, ManaSota-88 has a member who routinely recreates in
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`close proximity to Piney Point. This member canoes the marine waters
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`near Piney Point that have been directly impacted by the discharges
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`from Piney Point. The member enjoys the aesthetic beauty of the area
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`and particularly likes birdwatching. This member previously
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`volunteered during the last red tide event cleaning up dead fish from the
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`beaches of the area. The member’s recreational and aesthetic interests
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`are injured by Defendants' violations of RCRA at Piney Point because
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`this member’s enjoyment of canoeing and birdwatching is lessened
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`knowing there are harmful pollutants in the water caused by
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`Defendants’ actions and omissions at Piney Point. This member had
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`definite plans to canoe the area this year, but has modified those plans
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`because the discharges from Piney Point reduce his recreational and
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`aesthetic enjoyment. Additionally, this member is concerned that a
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`catastrophic collapse could cause the member serious bodily injury or
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`death.
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`b. ManaSota-88 has another member who lives on Anna Maria Island in
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`proximity to Piney Point and routinely recreates on the Island and
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`nearby. This member is extremely concerned about how pollution from
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`Piney Point will impact the member’s health and recreational interests.
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`The member experienced the devastating 2018 red tide event in Tampa
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`Bay, and developed health problems as a result. The member witnessed
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`the large fish kill that was caused by that event and suffered from
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`offensive odors inside the member’s home. The member is an avid
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`painter, a recreational pursuit from which the member derives
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`substantial enjoyment, and prefers to paint the natural world and beauty
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`that surrounds Tampa Bay. The member’s health and recreational
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`interests are injured by Defendants violations of RCRA and the
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`pollution from Piney Point. The member is afraid to go to the beach to
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`paint and is deeply concerned that the member’s health will be
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`negatively affected by Piney Point’s pollution.
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`18. Plaintiff Suncoast Waterkeeper (“SCWK”) is a Florida not-for-profit, public
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`interest organization with members throughout Southwest Florida. SCWK is
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`dedicated to protecting and restoring the Florida Suncoast's waterways and water
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`resources through fieldwork, advocacy, environmental education, and enforcement,
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`for the benefit of the communities and SCWK’s members who rely upon these
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`precious coastal resources.
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`19.
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`SCWK aims to protect local waterways and resources for use for water contact
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`recreation, aesthetic enjoyment, fishing, boating, wildlife observation, educational
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`study, potable consumption and spiritual contemplation. To further its mission,
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`SCWK actively seeks federal and state implementation of environmental laws, and,
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`where necessary, directly initiates enforcement actions on behalf of itself and its
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`members. SCWK has been registered as a not-for-profit corporation in Florida since
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`2012 and has maintained its good and current standing in Florida since that time.
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`Like TBWK, SCWK is a licensed member of Waterkeeper Alliance, Inc.
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`20.
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`Suncoast Waterkeeper has members that work, live, and recreate in proximity
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`of Piney Point. These members also make use of the waterways and natural areas in
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`proximity to Piney Point for recreational, aesthetic, and related purposes. These
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`members’ aesthetic, recreational, and other constitutionally-protected interests are
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`injured by Defendants’ actions and omissions at Piney Point.
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`a. For instance, one member is a fishing guide who regularly is employed
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`to guide recreational fishermen in the vicinity of Piney Point, including
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`Joe Bay, Cockroach Bay, and Bishop Harbor. The pollution discharged
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`from Piney Point and the potential for additional environmental harm
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`have impaired his business interests, because customers do not wish to
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`engage his services for fishing in polluted water. The member’s own
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`personal aesthetic and recreational interests are also negatively
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`impacted, as the member’s use and enjoyment of Joe Bay, Cockroach
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`Bay, Bishop Harbor, and other waters is lessened as a result of
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`Defendants’ violations of RCRA.
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`b. SCWK has another member that owns residential property upon which
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`she resides within two miles of Piney Point. This member previously
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`utilized her HOA community’s irrigation water for her yard and
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`garden, but has ceased doing so for fear of pollution, including from
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`Piney Point, making it is unsafe to use on the member’s garden and
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`fruit trees. This member’s interests are injured by Defendants’ violations
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`of RCRA, because they have injured her use and enjoyment of private
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`property and threaten her health and welfare.
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`21. Plaintiff Our Children’s Earth Foundation (“OCE”) is a not-for-profit public
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`benefit corporation with members throughout the United States including the Tampa
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`Bay Area. OCE’s mission is to promote public awareness of domestic and
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`international human rights issues and environmental impacts through education and
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`private enforcement actions for the benefit of children and other populations that are
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`the most vulnerable to pollution. OCE seeks to prevent environmental damage
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`wherever possible and ensure that appropriate environmental protection statutes are
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`being followed. Throughout its 20-year history, OCE has regularly initiated
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`environmental enforcement actions on behalf of itself and its members. OCE has
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`been registered as a not-for-profit corporation in Florida since 2016, and has more
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`members in Florida than any other state.
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`22.
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`Since 2016, OCE has focused its environmental enforcement activities related
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`to water quality in Florida, and specifically in the Tampa Bay and Sarasota Bay
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`areas. OCE members have repeatedly requested that OCE take legal action to
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`effectively address water pollution problems impacting their communities, as well as
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`sources of pollution that exacerbate harmful algae blooms. OCE members have
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`expressed concern and fear regarding their exposure to nutrient pollution as well as
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`the impacts of nutrient pollution to waters and wildlife in and around Tampa Bay
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`and the Gulf of Mexico.
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`COMPLAINT
`Case No. 8:21-cv-1521
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`Case 8:21-cv-01521-WFJ-CPT Document 1 Filed 06/24/21 Page 16 of 78 PageID 16
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`23. OCE has members that work, live, and recreate in proximity of Piney Point.
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`These members also make use of the waterways and natural areas in proximity to
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`Piney Point for recreational, aesthetic, and related purposes. These members’
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`aesthetic, recreational, and other constitutionally-protected interests are injured by
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`Defendants’ actions and omissions at Piney Point.
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`a. For instance, OCE has a member who routinely utilizes Tampa Bay
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`and other waters near Piney Point that are impacted by Defendants’
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`pollution. This member is a photographer who regularly meets with
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`clients for events and celebratory photo shoots, usually outdoors. This
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`member is also a landscape photographer and environmental
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`enthusiast, who enjoys taking photos and videos of beautiful outdoor
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`scenes in the Tampa Bay Area. The member’s enjoyment of
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`photographing Tampa Bay and its wildlife is negatively impacted by
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`Defendants’ violations of RCRA. The member enjoys recreating in
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`areas in proximity to Piney Point, including kayaking, and the
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`member’s enjoyment of these activities is lessened knowing that
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`Defendants discharged millions of gallons of pollution into surface
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`waters the member utilizes. This member is also a parent to a young
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`child, and fears for how Piney Point’s pollution could impact the child’s
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`health and wellbeing. This member’s constitutionally-protected interests
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`COMPLAINT
`Case No. 8:21-cv-1521
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`Case 8:21-cv-01521-WFJ-CPT Document 1 Filed 06/24/21 Page 17 of 78 PageID 17
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`are injured by Defendants’ violations of RCRA because this member
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`avoids professional or recreational activities in or near waters that have
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`been degraded by pollution from Piney Point. This member has suffered
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`financial injuries to their business through cancellations in previous red
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`tide and other algae bloom events, and anticipates losing future
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`bookings this year. This member fears the potential health impacts
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`resulting from contact or proximity to waters that have been polluted by
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`Piney Point. This member has lost trust in government due to their
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`observation of inaction and ineffective action by governmental entities
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`including the Defendants.
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`b. OCE has another member that is a musician who regularly plays gigs
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`on beaches and at beachside venues. This member has been impacted
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`by Defendants’ pollution and has curtailed their use and enjoyment of
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`impacted waters. This member has had fewer gigs with fewer attendees
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`in the weeks following the April 2021 pollution events at Piney Point
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`because business owners and beachgoers avoid being near the impacted
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`waters when harmful algae blooms are present. This member is
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`concerned about the health impacts of harmful algae blooms and
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`exposure to water pollution. This member fears the ecosystem impacts
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`caused by Piney Point’s nutrient pollution in Tampa Bay. This member
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`COMPLAINT
`Case No. 8:21-cv-1521
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`Case 8:21-cv-01521-WFJ-CPT Document 1 Filed 06/24/21 Page 18 of 78 PageID 18
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`is concerned about the long-term health of Tampa Bay and the health of
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`wildlife that utilizes local water.
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`24. At all relevant times, Plaintiffs were and are “persons” within the meaning of
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`RCRA, 42 U.S.C. § 6903(15).
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`Defendants
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`25. Defendant Ron DeSantis is Governor of the State of Florida. Governor
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`DeSantis is the head of the executive branch of the State of Florida, under which the
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`Florida Department of Environmental Protection operates. Governor DeSantis is
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`ultimately responsible for ensuring that Florida’s executive agencies operate in
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`compliance with federal law, including RCRA. Governor DeSantis is sued in his
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`official capacity.
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`26. Defendant Shawn Hamilton is the Acting Secretary of the Florida Department
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`of Environmental Protection (hereinafter referred to as “FDEP,” inclusive of
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`Defendant Shawn Hamilton). He is responsible for ensuring that FDEP operates in
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`compliance with federal law, including RCRA. Since 2001, FDEP has been tasked
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`with overseeing the operations, decisions, and closure of Piney Point. Mr. Hamilton
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`is sued in his official capacity.
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`27. Defendant HRK Holdings, LLC is a Florida for-profit corporation, with a
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`principal address of 13500 Scale Ave., Palmetto, FL 34221. HRK Holdings, LLC
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`(“HRK”) owns and operates the Piney Point facility under the direct supervision,
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`COMPLAINT
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`Case 8:21-cv-01521-WFJ-CPT Document 1 Filed 06/24/21 Page 19 of 78 PageID 19
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`control, and oversight of FDEP and Defendants Shawn Hamilton and Governor
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`DeSantis.
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`28. Defendant Manatee County Port Authority (“MCPA”) is an independent
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`body that owns and operates Port Manatee.
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`29. MCPA has autonomy from the State of Florida in its operation of Port
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`Manatee.
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`30. MCPA has the capacity to sue and be sued without prior approval or oversight
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`from the State of Florida.
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`31. MCPA has the authority to manage its finances and incur debt without prior
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`approval or oversight by the State of Florida.
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`32. MCPA’s governing body is composed entirely of the Board of County
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`Commissioners of Manatee County.
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`33. The Board of County Commissioners of Manatee County is an autonomous
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`political body that is not an arm of the State of Florida.
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`34. At all relevant times, Defendants were and are “persons” within the meaning
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`of RCRA, 42 U.S.C. § 6903(15).
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`IV. LEGAL FRAMEWORK
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`35. Congress enacted RCRA in 1976, amending the Solid Waste Disposal Act, see
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`Pub. L. No. 89-272, 79 Stat. 997-1001 (1965), to establish a comprehensive federal
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`program to regulate the handling and disposal of solid and hazardous waste. See Pub.
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`COMPLAINT
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`L. No. 94-580, 90 Stat. 2795 (1976) (codified as amended at 42 U.S.C. § 6901 et seq).
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`In so doing, Congress recognized that industries were generating more toxic sludge
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`and other pollution treatment residues that required proper disposal. 42 U.S.C. §
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`6901(b)(3). Further, Congress recognized that “inadequate and environmentally
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`unsound practices” for the disposal of such wastes were responsible for air and water
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`pollution that posed an unacceptable threat to human health and the environment.
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`See id. RCRA was meant to ensure that such wastes were handled responsibly and
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`did not reenter the environment.
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`36. The goal of RCRA is to promote the protection of health and the environment
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`and to conserve valuable material and energy resources by ensuring the safe
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`treatment, storage, and disposal of solid and hazardous waste. See id. § 6902. To
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`achieve this goal, RCRA prohibits “open dumping” on the land and the closure of
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`existing open dumps; provide for the management and disposal of hazardous waste
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`in a manner that protects human health and the environment; and prohibits solid and
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`hazardous waste management that may present an imminent and substantial
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`endangerment to health or the environment.
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`37.
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`Section 7002(a)(1)(B) of RCRA provides that citizens may commence a
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`citizen suit against “any person (including…any other governmental instrumentality
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`or agency, to the extent permitted by the eleventh amendment),” “including any past
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`or present generator, past or present transporter, or past or present owner or operator
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`COMPLAINT
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`of a treatment, storage, or disposal facility who has contributed or who is
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`contributing to the past or present handling, storage, treatment, or transportation, or
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`disposal of any solid or hazardous waste which may present and imminent and
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`substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B).
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`38. EPA has promulgated regulations and permitting requirements for hazardous
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`waste facilities. See generally 40 C.F.R. Parts 260-272.
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`39. RCRA defines “solid waste” as “any garbage, refuse, sludge from a waste
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`treatment plant, water supply treatment plant, or air pollution control facility and
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`other discarded material, including solid, liquid, semisolid, or contained gaseous
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`material resulting from industrial, commercial, mining, and agricultural operations,
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`and from community activities.” 42 U.S.C. § 6903(27).
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`40. Under RCRA, hazardous waste is a subset of solid waste. “[H]azardous waste
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`means a solid waste, or combination of solid wastes, which because of its quantity,
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`concentration, or physical, chemical, or infectious characteristics may—(A) cause, or
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`significantly contribute to an increase in mortality or an increase in serious
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`irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or
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`potential hazard to human health or the environment when improperly treated,
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`stored, transported, or disposed of, or otherwise managed.” 42 U.S.C. § 6903(5).
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`41. EPA regulations provide a set of criteria for determining whether a
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