ALI-ABA Course of Study Environmental Law

Transcription

1 229 ALI-ABA Course of Study Environmental Law Cosponsored by the Environmental Law Institute and The Smithsonian Institution February 4-6, 2009 Washington, D.C. Private Party Litigation Under RCRA By Daniel Riesel Sive, Paget & Riesel, P.C. New York, New York

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3 231 PRIVATE PARTY LITIGATION UNDER RCRA Daniel Riesel, Sive Paget & Riesel, P.C. The Resource Conservation and Recovery Act or RCRA, 42 U.S.C K, is commonly described as governing the management of solid and hazardous wastes from cradle to grave. 1 RCRA has created an elaborate regulatory system for tracking hazardous waste through its generation, treatment, storage, and ultimate disposal. However, RCRA has also become an environmental enforcement tool including its use in significant criminal prosecutions. 2 Section 7003 of RCRA, 42 U.S.C. 6973, empowers the government to bring actions to abate an imminent hazard as an aspect of its civil enforcement efforts. Congress amended RCRA s citizen suit provision 3 to provide citizens with a similar cause of action in This provision 4 Section 7002(a)(1)(B) of RCRA, 42 U.S.C. 6972(a)(1)(B) allows citizens to commence actions to abate an imminent and substantial endangerment to human health or the environment. This endangerment section transforms RCRA into a private party claim for relief that can force remediation of contaminated property. 1 See Carbone v. Town of Clarkstown, 511 U.S. 383 (1994). RCRA has the distinction of being one of two statutes described as mind numbing. American Mining Congress v. United States Envtl. Prot. Agency, 824 F2d 1117, 1189 (D.C. Cir. 1987). 2 See e.g., United States v. Johnson & Towers, Inc., 41 F.2d 662 (3d Cir. 1984) cert. denied, 469 U.S (1983); United States v. Hayes International Corp., 786 F2d 499 (11th Cir. 1986); see also Daniel Riesel & Daniel Chorost, When Regulatory Universes Collide: Environmental Regulation in the Work Place, 13 N.Y.U. ENVTL. L.J. 613 (2005). 3 RCRA 7002, 42 U.S.C. 6972: Section 7002(a)(1)(A) provides for citizen suits against any person in violation of RCRA rules and regulations and 7002(a)(1)(B)(2) provides a claim against the Administrator of the Environmental Protection Agency ( EPA ) for the failure to perform a nondiscretionary duty U.S.C. 6972(a)(1)(B). P:\DRIESEL\ARTICLES\Pvt Pty Litn under RCRA art doc

4 232 This is an appropriate time to revisit this unique Citizen Suit provision because there are still thousands of contaminated sites throughout the country. However, states will apparently have fewer resources to abate these hazardous conditions, and the U.S. Environmental Protection Agency may very well be shifting its finite resources to the fight against global warming and other macro environmental problems. These circumstances mean that the burden of compelling remediation will increasingly rest with private parties, and therefore, there will be an increased reliance on RCRA 7002(a)(1)(B) claims. Concomitantly, this Section should also be discussed in the context of potential misuses of the environmental process. Endangerment Provisions The unique aspect of Section 7002(a)(1)(B) is the creation of a claim based upon a heightened risk or an 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 U.S.C. 6972(a)(1)(B). Courts are authorized to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both (a)(1)(B) of RCRA. This endangerment provision appears to have a relatively low threshold of liability: any solid or hazardous waste which may present an imminent and substantial 2

5 233 endangerment. This phrase may present an imminent and substantial endangerment has received an expansive construction by five circuits that have construed that 7002(a)(1)(B). 5 All five courts have emphasized the preeminence of the word may in defining the degree of risk needed to support RCRA 7002(a)(1)(B) s liability standard. The First Circuit explained: [T]he combination of the word may with the word endanger, both of which are probabilistic, leads us to conclude that a reasonable prospect of future harm is adequate to engage the gears of RCRA 7002(a)(1)(B) so long as the threat is near-term and involves potentially serious harm. The language, structure, purpose, and legislative history of the provision will not comfortably accommodate the more restricted reading that Mallinckrodt espouses. While there may be good and wise reasons to adopt a regime in which EPA determinations of environmental liability are exclusive, it is Congress's place, not ours, to construct such a regime. To this date, Congress has not done so. Mallinckrodt at 296. The Mallinckrodt court further summarized the law of the RCRA citizen suit as follows: the provision allows citizen suits when there is a reasonable prospect that a serious, near-term threat to human health or the environment exists. 6 The court further explained, It is the threat that must be close at hand, even if the perceived harm is not. 7 Private Clean Up Actions 5 See Maine People s Alliance v. Mallinckrodt 471 F.3d 277 (1st Cir. 2006), cert. denied, 128 S. Ct. 93 (2007) ( Mallinckrodt ); Interfaith Cmty. Org. v. Honeywell Int'l., Inc., 399 F.3d 248, (3d Cir. 2005), cert. denied 545 U.S ( Interfaith ); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1015 (11th Cir. 2004); Cox v. City of Dallas, 256 F.3d 281, 299 (5th Cir. 2001); Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir. 1991), rev d in part on other grounds, 505 U.S. 557 (1992). 6 Id. at Id. at 280, n.1 (emphasis in original). 3

6 234 Parties have utilized RCRA s citizen suit provision to resolve private hazardous waste contamination disputes primarily in two contexts. First, where hazardous waste emanating from an off-site source affects private property, the landowner may seek to hold the owner or operator of the off-site source responsible for remediating its property by bringing a RCRA citizen suit alleging that the off-site owner or operator's activities are creating an "imminent and substantial endangerment." 8 For example, in Interfaith, 9 citizens living near a hazardous waste site sought injunctive relief requiring the site owner to remediate the waste. The district court granted the injunction after finding ample evidence of imminent and substantial endangerment. 10 The Third Circuit Court of Appeals affirmed, observing that contaminant levels at the site and its surrounding environment ranged from between 30 and 8,000 times over state standards, that there were millions of holes in the existing plastic liner intended to prevent exposure pathways, and that mortality rates for various organisms living on or near the site ranged between 50 and 100 percent, a fact attributed to the site's contamination. 11 The second context in which the RCRA citizen suit provision is implicated is where a landowner attempts to hold a past owner or operator liable for cleaning up hazardous waste contamination believed to have occurred prior to the landowner's acquisition of the property, but not discovered until afterwards Interfaith, 399 F.3d 248; but see 87 th St. Owners Corp. v. Carnegie Hill 87 th St. Corp., 251 F. Supp. 2d 1215 (S.D.N.Y. 2002) (denying injunctive relief were plaintiffs could identify no action which had yet to be taken which would abate alleged endangerment). 9 Interfaith, 399 F.3d at Interfaith Cmty. Org. v. Honeywell Int'l., Inc., 263 F. Supp. 2d 796, 874 (D.N.J. 2003). 11 Interfaith, 399 F.3d at See United States v. Union Corp., 259 F. Supp. 2d at (E.D.Pa. 2003) but see Delaney v. Town of Carmel, 55 F. Supp. 2d 237, 256 (S.D.N.Y. 1999), wherein the court held that passive ownership is not sufficient to make out a claim based on the Sections contributed to liability formulation. 4

7 235 Section 7002 Claim Advantages Section 7002(a)(1)(B) has several distinct advantages for a Plaintiff compared with CERCLA s Section First, RCRA s endangerment provision extends to waste petroleum, a ubiquitous waste conspicuously absent from CERCLA s reach. This provision also extends to endangerments created by other solid waste as opposed to a hazardous waste. Second, the scope of putative defendants appear to be more extensive than CERCLA 107, extending to any person who has contributed or is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste. Moreover, as the above statutory text makes clear, CERCLA s citizen suit provision applies to wholly past actions, as opposed to other citizen suit provisions. Another advantage of Section 7002 is that it may facilitate the ability of the plaintiff to obtain a preliminary injunction by reducing the burden of proving the requirement of an irreparable injury unless interlocutory relief is obtained. The Department of Justice has argued that its comparable provision, Section 7003, does not require it to show actual irreparable harm, and the third circuit has opined that [t]hese provisions have enhanced the court s traditional equitable powers by authorizing the issuance of an injunction when there is but a risk of harm, a more lenient standard than the traditional requirement of a threatened irreparable harm. 14 The Mallinckrodt court reasoned that injunctive relief ordering the defendant to study mercury concentration in the Penobscot River was warranted despite a questionable showing of irreparable injury. Given the strong statement in [U.S. v.] Price embraced by the Senate Report, advocating the exercise of U.S.C. 9607, CERCLA 107(a). 14 United States v. Price, 688 F.2d 204 (3rd Cir. 1982) ( Price ); see also, W.R. Grace &Co. v. United States Envtl. Prot. Agency, 261 F.3rd 330, (3rd Cir. 2001). 5

8 236 equitable remediation of environmental hazards, we perceive a congressional thumb on the scale in favor of remediation. Mallinckrodt, 471 F.3d at 297. Another advantage is, unlike CERCLA, there is no requirement that the plaintiff expend response costs as a predicate for recovery. CERCLA s 107 cost recovery provisions are essentially for the recovery of voluntary expended response costs consistent with the National Contingency Plan. 15 Claims for future costs face serious issues of proof. 16 Under the RCRA endangerment regime, the burden of cleaning up is shifted entirely to the losing defendant. Nor does the remedy necessarily involve the complete remedy of removal or clean up. In Mallinckrodt the EPA required a PRP, Mallinckrodt, to remediate certain areas of mercury contamination in the Penobscot River, but declined to force the PRP to study other concentrations further downstream from the source. The First Circuit affirmed the district court s order requiring a costly study of the downstream concentrations. 17 Another significant advantage of Section 7002 is that the court may award attorney s fees to the prevailing party or substantially to the prevailing party, whenever the court determines such an award is appropriate. 18 Although it is possible for the court to award fees and costs to a prevailing defendant, it is unlikely that a prevailing defendant as opposed to a prevailing plaintiff would not receive such an award. 19 On 15 United States v. Atlantic Research Corp., 127 S. Ct (2007). 16 See, e.g., Action Manufacturing, Inc. v. Simon Wrecking Co., 287 Fed. Appx. 171 (3d Cir. 2008). 17 Mallinckrodt, 471 F.3d at U.S.C. 6972(e), RCRA 7002(e). 19 Daniel Riesel, Environmental Enforcement, Civil and Criminal, LAW JOURNAL PRESS (1997) at

9 237 the other hand, a prevailing 7002 plaintiff would normally receive reasonable attorney and expert witness fees. 20 Trial of a Section 7002(a)(1)(B) Claim Trials of RCRA citizen suits are likely to focus on the issue of whether there actually is an imminent and substantial endangerment to health or the environment or both posed by solid or hazardous waste. Perhaps the most instructive case is the Interfaith litigation in the District of New Jersey, where the court applied the standard that an imminent and substantial endangerment may exist where: (1) there is a potential population at risk; (2) the contaminant at issue is a RCRA solid or hazardous waste ; (3) the contaminant is present at levels above that considered acceptable by the state; and (4) there is a pathway for current and/or future exposure. 21 The court held, after a bench trial, that a site where chromium, deposited prior to 1950 and left there, still posed an imminent and substantial endangerment because: (1) samples of soil, surface water and groundwater from the site contained levels of chromium in excess of New Jersey remediation standards; (2) chromium is a known human carcinogen and also toxic to all known environmental receptors; and (3) although interim remedial measures had previously been implemented, they were deteriorating in a manner that would allow the exposure of trespassers or construction personnel to the contamination, and the discharge of chromium into a nearby river. 22 The Third Circuit Court of Appeals affirmed, and held that the district court had actually imposed too high a standard with respect to what constituted an imminent and substantial endangerment. 23 First, the court held that a living population need not be endangered; rather, the 20 Id. 21 Interfaith Community Org. v. Honeywell Int l, Inc., 263 F. Supp. 2d 796, 838 (D.N.J. 2003). 22 Id. at

10 238 endangerment must accrue to either a population or merely to the environment itself. Second, the court rejected the district court's construction of the law that in order to show a substantial endangerment a plaintiff must show that a contaminant is present at levels above that considered acceptable by the state. 24 The court of appeals focused on the interim measure s demonstrated lack of functionality, the defendant's concession that it could not prevent all discharges to the river, and the state's failure to enforce a 1993 consent order requiring the interim measure and the development of a permanent remedial program. This case exemplifies how even where some statesanctioned remedial measures have been implemented, citizen plaintiffs may still be able to establish the existence of an imminent and substantial endangerment. Limitations on the Use of Section 7002(a)(1)(B) On the other hand, there are several limitations on a party's ability to seek injunctive relief under Section 7002(a)(1)(B). Adequate standing and compliance with the Section s notice requirements have taken their toll of 7002(a)(1)(B) complaints. 25 However, the most troublesome barrier to endangerment claims are the Section s provisions which prevent duplication of governmental efforts to clean up contaminated sites. (a) Prior Notice A party initiating a RCRA citizen suit alleging imminent and substantial endangerment must provide ninety days notice of the endangerment to: (1) the Administrator of EPA; (2) the State in which the alleged endangerment may occur; and (3) any person alleged to have contributed or to be contributing to the past or 23 Interfaith, 399 F.3d at Id. at

11 239 present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in subsection (a)(1)(b) of this section.... RCRA 7002(b)(2)(A). The notice requirements of RCRA are considerably more complicated than those of the Clean Water Act, and require close scrutiny. The standard sixty-day notice requirement that is present in the Clean Water Act and most other citizen suit provisions is also present in RCRA, but the notice requirement applies only to actions against persons who are alleged to be in violation the same language that the courts have found precludes citizen suits for wholly past violations in Clean Water Act cases. For cases in which citizen-plaintiffs sue over past violations that may present an imminent and substantial endangerment, 26 RCRA requires notice of ninety days. 27 However, it is vitally important to note that there is an exception, allowing suit to be brought immediately after notice for violations of Subchapter III of RCRA, pertaining to the management of hazardous waste. 28 Some circuits have extended this exception to apply to hybrid claims alleging both Subchapter III violations and imminent and substantial endangerment, as long as the claims are closely related; for example, insofar as the claims arise from the operation of a single facility (b) Anti-Duplication Limitations 25 See, e.g., Bldg. & Constr. Trades Council of Buffalo v. Downtown Dev., Inc., 448 F.3d 138 (2d Cir. 2006) U.S.C. 6972(a)(1)(B) U.S.C. 6972(b)(2)(A) states in relevant part: No action may be commenced under subsection (a)(1)(b) of this section prior to ninety days after the plaintiff has given notice of the endangerment U.S.C. 6972(b)(1)(A)(iii); 42 U.S.C. 6972(b)(2)(A)(iii); 42 U.S.C. 6972(c) Seventh Circuit: AM Int l, Inc. v. Datacard Corp., 106 F.3d 1342 (7th Cir. 1997). Eighth Circuit: Nadist v. The Doe Run Resources Corp., No. 4:06CV969, 2007 WL (E.D. Mo. Jan. 23, 2007). 9

12 240 Congress was concerned that citizen litigants might use the endangerment provision to duplicate clean up efforts that the EPA and various state governments had already commenced. Accordingly, Congress enacted additional restrictions on the use of this citizen suit cause of action. 29 Although Congress obviously was aware that many endangerments could be created, or at least aggravated by a less then vigorous governmental effort, section 7002 s anti-duplication provisions have been used to frustrate prompt clean-ups. 30 Nevertheless, sections 6972(b)(2)(B) and (C) reflect some degree of balance. For example, no action may be commenced if the EPA has commenced and is diligently prosecuting an action under sections 6973 of RCRA or 106 of CERCLA. 31 Similarly, a citizen suit would be barred if either the EPA or a state has incurred costs to initiate a [RI\FS] under section 104 of [CERCLA] and is diligently proceeding with a remedial action under [CERCLA]. 32 The real problem is the glacial progress of some governmental clean ups often cry out for a citizen s 7002 action but the existence of the languorous governmental action frustrates the citizen litigant. Two points might be emphasized in resolving this potential impasse: (i) 7002 only constructs a barrier to prior actions that are being diligently prosecuted, and (ii) a U.S.C. 6972(b)2(B), (C). 30 See Kara Holding Corp. v. Getty Petro l. Mktg. Inc., 67 F. Supp. 2d 302, (S.D.N.Y. 1999): Section 7002(b)(2)(B) prohibits the commencement of an endangerment action where the Administrator (i) has already commenced and is diligently prosecuting its own endangerment action under RCRA 7003; (ii) is actually engaging in a removal action under Section 104 (iii) has incurred costs to imitate a [RI/FS] and (iv) has obtained or issued a 106 order. Similarly, 7002(b)(2)(C) precludes the commencement of an action if the State (i) has commenced and is diligently prosecuting an action under (a)(1)(b) (ii) is actually engaging in a removal action under Section (iii) has incurred costs to imitate a [RI/FS] U.S.C. 6972(b)(2)(B)(i) U.S.C. 6972(b)(2)(B)(iii), (C)(iii). However, in order for the initiation of an RI/FS to be considered under section 104, it must either be initiated by the U.S. EPA or by a state agency pursuant to a federal-state agreement. Solvent Chem. Co. ICC Indus., Inc. v. E.I. Dupont De Nemours & Co., 242 F. Supp. 2d. 196, 219 (W.D.N.Y. 2002). 10

13 (a)(1)(B) action should receive the same liberal judicial reception as Congress clearly intended for all citizen suits. 33 (c) No Recovery of Response Costs Most significant is the Supreme Court s holding in Meghrig v. KFC Western, Inc., that response costs for past cleanup activities are not recoverable in a RCRA citizen suit claiming imminent and substantial endangerment to human health or the environment pursuant to 42 U.S.C. 6972(a)(1)(B). 34 Rather, private parties are permitted only to bring suit for response costs where hazardous wastes present a continuing danger. 35 Relying heavily on Meghrig, the Seventh Circuit Court of Appeals found that Congress had deliberately limited RCRA s remedies to injunctive relief more specifically, to injunctive relief obtained before the property is cleaned up, "while the danger to health or the environment is imminent and substantial. 36 The Court affirmed that RCRA cannot be read to allow a party to recover cleanup costs, unlike CERCLA, which was enacted after RCRA, and expressly provides for the recovery of cleanup costs. 37 Other courts, however, have found the opposite, holding that cleanup costs incurred to remediate an imminent and substantial endangerment following the initiation of a RCRA citizen suit may be recovered. 38 Notwithstanding this split and the 33 Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976), cert. denied, 434 U.S. 902 (1977). 34 Meghrig v. KFC Western, Inc., 516 U.S. 479, 488 (1996) ( Meghrig ). 35 Id. 36 Avondale Fed l Savings Bank v. Amoco Oil Co., 170 F.3d 692, 694 (7th Cir. 1999) ( Avondale ). 37 Id. 38 See, e.g., Gilroy Canning Co. v. California Canners and Growers, 15 F. Supp. 2d 943 (N.D. Cal. 1998). 11

14 242 Supreme Court s holding in Meghrig, the RCRA citizen suit remains a powerful tool for recovering even wholly past response costs, as parties may be willing to pay for some response costs in settling what otherwise would be costly and complex litigation over liability and the appropriate remedial response. Moreover, the recovery of response costs can be obtained in appropriate cases by the addition of state common law claims addressed to district courts supplemental jurisdiction. 39 Appropriate Forum One final unresolved question is whether RCRA citizen suits may be brought in state court, as corollaries to common law toxic tort claims, or whether Congress conferred exclusive jurisdiction over RCRA citizen suits in the federal courts. The Sixth Circuit Court of Appeals, in the first court of appeals decision to squarely address the issue, held that there is concurrent federal and state jurisdiction over RCRA citizen suits. 40 Other courts have held, though mainly in the contexts of abstention and preclusion, that RCRA provides for exclusive federal jurisdiction over citizen suits. 41 Conclusion Almost every RCRA 7002(a)(1)(B) litigant is met with a motion to dismiss arguing, inter alia, that the trial court should defer to the Environmental Protection Agency because of its superior ability to handle difficult technical issues. This frequent argument raises the critical issue in these actions, which is whether the aggrieved citizen can have 39 Cf. Delaney v. Town of Carmel, 55 F. Supp. 2d 237 (S.D.N.Y. 1999). 40 Davis v. Sun Oil Co., 148 F.3d 606, 612 (6th Cir.), cert. denied, 525 U.S (1998). 41 See Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094, 1098 (8th Cir. 1989); Mutual Life Ins. Co. of New York v. Mobil Corp., 1998 U.S. Dist. LEXIS 4513, *14-*16 (N.D.N.Y. 1998); White & Brewer Trucking, Inc. v. Donley, 952 F. Supp. 1306, 1312 (C.D. Ill. 1997); Seats v. Hooper, 1997 U.S. Dist. LEXIS 14919, *7 (E.D. Pa. 1997); Space Age Fuels, Inc. v. Standard Oil Co. of California, 1996 U.S. Dist. LEXIS 3654, *13 (D. Or. 1996); Prisco v. New York, 1992 U.S. Dist. LEXIS 5273, *9-*10 (S.D.N.Y. 1992); Middlesex County Bd. of Chosen Freeholders v. New Jersey Dept. of Envtl. Prot., 645 F. Supp. 715, (D.N.J. 1986). 12

15 243 her day in court, or whether that citizen must be the perpetual outsider to the interaction between the government and the putative polluter. We submit that the short answer is: an imminent and substantial endangerment usually arises from whatever the government is doing or not doing. If the government is effective and diligent, then there will probably be no imminent and substantial endangerment within the meaning of Section 7002 and therefore no grounds for a Citizen Suit; otherwise, the Citizen should have her day in Court. 13

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