Presenting a live 90-minute webinar with interactive Q&A RCRA Litigation and the Substantial Endangerment Requirement Defending RCRA Citizen Suits by Proving Plaintiff Failed to Demonstrate Imminent Harm THURS DAY, APRIL 5, 2012 1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific Today’s faculty features: Andrew J. Carafelli, Dewhirst & Dolven , Denver Daniel Riesel, Prinicpal, Sive Paget & Riesel , New Y ork The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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RCRA Imminent and Substantial Endangerment Daniel Riesel 460 Park Avenue, 10 th Floor New York City, NY 10022 212-421-2150 ext. 224 5 driesel@sprlaw.com
Introduction to RCRA • Resource Conservation and Recovery Act (1976) • 42 U.S.C. § 6901 et. seq. • Cradle-to-grave environmental protection statute • Regulates waste through • Generation • Treatment • Storage • Ultimate Disposal 6
RCRA Citizen Suits • RCRA Citizen Suit Provision – • 7002(a)(1)(A) • Allows citizens bring suit against EPA’s Administrator or against a polluter for violation of a permit, regulation, or order • 7002(a)(1)(B) – imminent and substantial endangerment • “any person may commence a civil action on his own behalf...against any person..., and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment....” 7
Elements of a 7002(a)(1)(B) Claim • Any person with standing can commence a civil action against “any person” that is a: • Past or present generator • Past or present transporter • Past or present owner or operator of a treatment, storage, or disposal facility • Who has contributed or is contributing to the past or present: • Handling • Storage • Treatment • Transportation or Disposal • Of any solid or hazardous waste • Which may present an imminent and substantial endangerment to health or the environment 8
Significance of the Imminent & Substantial Endangerment Claim • Imminent & substantial endangerment claims have a broad reach: • Extends to solid waste & oil which are not covered by CERCLA; • Specifically provides for injunctive relief; • Abatement of polluting activities; • Cause defendant to clean up pollution; • Avoids the problem generated by the conflict between CERCLA 107 and 113 claims, as well as NCP conformity; • Triggered by the threat of increased risk or “endangerment” as opposed to actual damage; • Provides an award of attorney’s fees and costs • Retroactive Effect • Probably can be brought in State Court 9 • No statute of limitations
The Nature of an Imminent & Substantial Endangerment • Courts have construed imminent & substantial endangerment to have an expansive reach: • “Substantial” requires serious harm • “Imminent” requires only that the harm poses a near-term threat • Not that the harm will necessarily occur or that actual damage will manifest immediately • “May” and “Endanger” require only that there is a reasonable prospect of future harm • Maine People’s Alliance v. Mallinckrodt , 471 F 3d 277 (1st Cir. 2006), cert. denied 128 S. Ct. 93 (2007) • Plaintiffs must show a causal link between offending conduct and condition sought to be remedied 10 • Oklahoma v. Tyson Foods, Inc., No. 08-5154 (10 th Cir. May 13, 2009)
Contributing • “Contributed” and “contributing” are not defined in the RCRA statute, but should be broadly construed • EPA and Courts use the dictionary definition of contribute to give meaning to the statutory text: • “contributing to” is “to have a share in any act or effect” • U.S. v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373 (8th Cir. 1989) • EPA Section 7003 Guidance • Examples of having contributed or contributing: • Contracting with a company to perform a process that generates waste & maintaining ownership of the waste throughout the process • An owner failing to abate a known existing hazardous condition • An owner of a facility that leaked solid waste • A person who operated equipment from which solid waste leaked 11
Procedural Barriers – Standing & Prior Notice • Standing – citizen plaintiff must show • They have suffered an injury (may be aesthetic or health-related), • The Defendant’s actions caused that injury, and • A favorable decision will redress the plaintiff’s injury • Friends of the Earth v. Laidlaw Envtl. Serv.,Inc. 528 U.S. 167 (2000) • Prior Notice • Plaintiff must provide defendant with 90 days notice of his violating conduct in sufficient detail to allow correction • Plaintiff must also provide notice to Administrator and State • Exception for hazardous waste – action may be brought immediately after notification • Failure to provide notice is fatal 12 • Hallstrom v. Tillamook County, 493 U.S. 20 (1989 )
Procedural Barriers – Prior Government Activity • Federal – action prohibited where the Administrator: • Has commenced & is diligently prosecuting an action under RCRA § 7003 or CERCLA § 106; • Is actually engaging in a removal action under CERCLA § 104; • Has incurred costs to initiate an RI/FS under CERCLA and is diligently proceeding with a remedial action under CERCLA • Has obtained a court order or issued an administrative order under CERCLA § 106 or RCRA § 7003. • Inc. Village of Garden City v. Genesco et al., 596 F.Supp. 2d (EDNY 2009), vacated and rev’d in part, 2009 WL 3081724 (Sept.23, 2009) • State – action prohibited if the State: • Has commenced and is diligently prosecuting an action under (a)(1)(B); • Is actually engaging in a removal action under CERCLA § 106; • Has incurred costs to initiate an RI/FS and is diligently proceeding with remedial action. 13 • Only diligent government action is a barrier
Limitations on the 7002 Remedy • No money damages or response costs • Meghrig v. KFC Western, Inc., 516 U.S. 479 (1996) • Hazardous waste must present a continuing danger – no recovery of prior cleanup costs • Avondale Federal Sav. Bank v. Amoco Oil Co., 170 F.3d 692, 694 (7th Cir. 1999) • Broad injunctive relief is subject to traditional limitations on the court’s equitable powers • 87 th St. Owners Corp. v. Carnegie Hill 87 th St. Corp., 251 F.Supp. 2d 1215 (S.D.N.Y.2002) • Injunctions range from abatement orders, to requiring site cleanup, to ordering defendants to conduct extensive studies 14
State Court Jurisdiction • Courts are split as to whether Congress conferred exclusive jurisdiction over RCRA citizen suits in the federal courts • 6th Circuit held there is concurrent federal and state jurisdiction • Davis v. Sun Oil Co., 148 F.3d 606 (6th Cir.), cert. denied, 525 U.S. 1018, 119 S.Ct. 543 (1998) • Other courts held RCRA provides for exclusive federal jurisdiction over citizen suits (mainly in the contexts of abstention & preclusion) • See Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094 (8th Cir. 1989) • Mutual Life Insurance Co. of New York v. Mobil Corp., 1998 U.S. Dist. LEXIS 4513 (N.D.N.Y. 1998) 15
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