RCRA Litigation Strategies: Defeating Claims of Substantial Endangerment

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A RCRA Litigation Strategies: Defeating Claims of Substantial Endangerment Defending RCRA Citizen Suits by Proving Plaintiff Failed to Demonstrate Imminent Harm TUESDAY, AUGUST 25, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: John McGahren, Partner, Morgan Lewis & Bockius, Princeton, N.J. Michael W. Steinberg, Senior Counsel, Morgan Lewis & Bockius, Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 LITIGATING RCRA CITIZEN SUITS AND IMMINENT HAZARD CLAIMS Michael W. Steinberg and John McGahren August 25, 2015

6 Overview Elements of a Claim Under Section 7002(a) of RCRA Relief Available to Plaintiffs Statutory Defenses Under Section 7002(b) Other Defenses Demonstrating Imminent & Substantial Endangerment Important New RCRA Cases Tips and Considerations for Prosecuting/Defending RCRA Citizens Suits Notice Requirements Standing Redressible injury Pairing of RCRA with other Environmental Claims in Litigation Proving/Defeating RCRA Claims at Trial Litigation Case Study: Litgo v. Commissioner of NJDEP 6

7 Introduction to Resource Conservation and Recovery Act (1976) Resource Conservation and Recovery Act (1976) 42 U.S.C et. seq. Cradle-to-Grave Environmental Protection Statute Regulates waste through entire life cycle (generation, treatment, storage, and disposal). Governs both solid wastes (elaborately defined) and primarily hazardous wastes. RCRA s Goal Ensure proper management, treatment, and disposal of waste, protecting human health and the environment. To minimize the present and future threat to human health and the environment. 42 U.S.C. 6902(b) RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation of environmental hazards; rather, RCRA's primary purpose is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste to minimize the present and future threat to human health and the environment. Enforcement and Compliance Enforcement actions a key to RCRA compliance and proper management of hazardous waste. 7

8 Types of RCRA Citizen Suits RCRA recognizes 2 main types of citizen suits: And a 3d type to compel the Administrator of EPA to perform a nondiscretionary duty. E.g., Appalachian Voices v. McCarthy, Civil Action No (D.D.C. Oct. 29, 2013) (RCRA 2002(b) requires EPA to review and, as needed, revise all RCRA rules not less frequently than every three years. ) Section 7002(a)(1)(A) Violation of RCRA Allows suits against any person, including federal, state or local governments, that is violating any RCRA permit, standard, regulation, condition, requirement, prohibition, or order. Section 7002(a)(1)(B) Imminent and Substantial Endangerment Allows suits against 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 which may present an imminent and substantial endangerment to health or the environment.... 8

9 Elements of RCRA Citizen Suits For a violation of RCRA suit, plaintiff must establish that defendant: is in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to [RCRA]. RCRA 7002(a)(1)(A), 42 U.S.C. 6972(a)(1)(A). The violation(s) must be continuing, at least in part, rather than wholly in the past. Meghrig v. KFC W., Inc., 516 U.S. 479 (1996). This could potentially include past illegal hazardous waste disposal if the waste remains where it was deposited and can still damage the environment. 9

10 Elements of RCRA Citizen Suits (cont d) An unresolved issue is whether citizens can bring violation of RCRA claims to enforce hazardous waste rules in States with EPA-authorized RCRA programs. Under RCRA 3006(b), when EPA authorizes a State program, the State is authorized to carry out such program in lieu of the Federal program.... In other words, the EPA regulatory framework is displaced by the State program upon authorization, and State law provides the enforceable RCRA requirements. The courts are split on whether federal courts can hear citizen suits alleging violations of hazardous waste regulations in states with EPA- authorized RCRA programs. Courts rejecting such suits reason that the alleged violations are exclusively a matter of state law, even if state law is closely patterned after, or identical to, the federal RCRA provisions. Courts allowing such suits cite the statutory language above -- an authorized state RCRA program operates in lieu of the federal program to suggest that federal jurisdiction is retained. 10

11 Elements of RCRA Citizen Suits (cont d) For an imminent hazard suit, plaintiff must establish that: (1) the defendant has contributed to or is contributing to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and (2) the solid or hazardous waste may present an imminent and substantial endangerment to health or the environment. RCRA 7002(a)(1)(B), 42 U.S.C. 6972(a)(1)(B). Note that in this context, the term solid waste is broader than EPA s very complex regulatory definition of solid waste. E.g., Connecticut Coastal Fisherman s Ass n v. Remington Arms Co., 989 F.2d 1305, 1315 (2d Cir. 1993) ( the broader statutory definition of solid waste applies to citizen suits brought to abate imminent hazard to health or the environment ). As we ll soon see, the key terms of may, imminent, and substantial are not exactly intuitive. 11

12 Relief Available to Plaintiffs Assessing civil penalties under Sections 3008(a) and (g) RCRA is silent as to who gets any civil penalties assessed against defendant Some courts hold that such penalties must be paid to the U.S. Treasury perhaps seeking a balance between promoting private enforcement and not paying bounty hunters Requiring compliance with RCRA permits, regulations, or standards E.g., the court may order immediate compliance with regulations, or even permanent closure of a facility. N.B. An imminent hazard suit may not obtain injunctive relief against a permit. As in civil judicial enforcement, the three-pronged test for granting a permanent injunction is less stringent than requests for such injunctions in private actions.) 12

13 Relief Available to Plaintiffs (cont d) Restraining persons contributing to an actual or potential imminent and substantial endangerment Requiring such persons to take any necessary actions. Broad scope of equitable relief is available. Congress, in the endangerment [provision] of RCRA... sought to invoke nothing less than the full equity powers of the federal courts in the effort to protect public health, the environment, and public water supplies from the pernicious effects of toxic wastes. United States v. Price, 688 F.2d 204, 214 (3d Cir. 1982) In one high-profile case, the district court appointed a special master to oversee defendant s compliance with detailed injunctive relief. The court also ordered defendant to compensate the special master and his support staff at their hourly billing rates -- for their time on the project. Note that RCRA expressly precludes injunctive relief blocking facility permits in imminent hazard cases (see below). RCRA 7002(b)(2)(D). 13

14 Relief Available to Plaintiffs (cont d) What about imminent hazard class actions? The statute suggests that class action suits are not appropriate. Section 7002(a)(1)(B) states that any person may commence a civil action on his own behalf to address an alleged imminent hazard Yet the limited body of case law suggests that courts are receptive to certifying a class for injunctive relief, such as cessation and/or abatement of contamination. See, e.g., Muniz v. Rexnord Corp., No. 04 C 2405, 2005 WL (N.D. Ill. Feb. 10, 2005) (certifying class consisting of persons who reside or have resided within a defined geographical area on issue of liability regarding drinking water supply impacted or that might be impacted by hazardous substances allegedly released by defendants); Bentley v. Honeywell Int l, Inc., 223 F.R.D. 471 (S.D. Ohio 2004) (certifying class of persons who own or reside within the defined area of contamination and/or who own or reside in residential property that derives its water from municipal water system impacted by defendants alleged release of hazardous chemicals); Mejdreck v. Lockfomer Co., No. 01 C 6107, 2002 WL (N.D. Ill. Aug. 12, 2002) (granting class certification to residents of area impacted or that might be impacted by hazardous substances, and noting that variation in amount of contamination in proposed class members wells does not destroy commonality element). 14

15 Relief Available to Plaintiffs (cont d) Section 7002(e) also grants courts the discretion to order the payment of costs, including reasonable attorney s fees, to the prevailing or substantially prevailing party. Courts have frequently awarded costs and fees to citizen suit plaintiffs. Some courts have evaluated fee requests by using the catalyst theory, asking whether the citizen group materially altered the legal relationship of the parties, or simply affected the behavior of the defendant, even if the relief sought was not granted by the court. But recent Supreme Court jurisprudence under other fee-shifting statutes suggests that these catalyst theory awards may be a thing of the past. Finally, costs are not granted for all activities of the prevailing party, such as opposing the defendant in a related enforcement action under the Clean Water Act, challenging local procedural rules, or making an appearance at the defendant s bankruptcy proceedings. 15

16 Relief Not Available to Plaintiffs Imminent hazard suits cannot be used by private citizens to challenge facility siting decisions or to enjoin the issuance of facility permits. No action may be commenced under subsection (a)(1)(b) of this section by any person (other than a State or local government) with respect to the siting of a hazardous waste treatment, storage, or a disposal facility, nor to restrain or enjoin the issuance of a permit for such facility. RCRA 7002(d) But query whether a private citizen may bring a Violation of RCRA suit under section 7002(a)(1)(A), claiming that the State violated RCRA when it issued (or renewed or modified) a facility permit. E.g., the State issued (or renewed or modified) a RCRA permit for a facility that did not fully meet all of the RCRA regulatory requirements. 16

17 Relief Not Available to Plaintiffs (cont d) Section 7002 does not create a private cause of action for money damages. E.g., No medical monitoring costs. Some plaintiffs tried to use RCRA citizen suits as cost recovery vehicles, seeking an injunction ordering payment as a form of restitution. This was seen as a potentially attractive alternative to Superfund litigation. The Supreme Court foreclosed RCRA cost recovery actions with respect to past cleanup costs in Meghrig v. KFC W., Inc., 516 U.S. 479 (1996):... RCRA s citizen suit provision is not directed at providing compensation for past cleanup efforts.... Congress did not intend for a private citizen to be able to undertake a clean up and then proceed to recover its costs under RCRA. Lower courts have continued to whittle away at it, even with regard to future cleanup costs. 17

18 Where are all the citizen suits? For some reason, the actual number of citizen suits filed under RCRA has never approached the number filed under the Clean Water Act. RCRA regulatory framework is complex and full of pitfalls for the unwary. Even determining whether EPA or State rules govern can be problematic. Discharger s monthly self-reporting provides objective basis for identifying CWA violations. RCRA violations can be more difficult to prove. Yet the sheer number of RCRA citizen suits continues to rise. The federal cause of action provided by Section 7002, with its explicit feeshifting provision, remains very attractive to potential plaintiffs. Note that an out-of-state corporation lacks standing to sue its competitor over RCRA violations in a state where the plaintiff has no facilities. Goldendale Aluminum Co. v. Reynolds Metals Corp., 1997 U.S. Dist. LEXIS (W.D. Ark. 1997). 18

19 Statutory Defenses Under Section 7002(b) RCRA 7002(b)(2) Type of Agency Action Taken By (B)(i) Commenced and prosecuting a civil action under either CERCLA 106 or RCRA EPA 7003 (B)(ii), (C)(ii) Actually engaging in a removal action under CERCLA 104 EPA or State (B)(iii), (C)(iii) Incurred costs to initiate RI/FS under CERCLA 104 and diligently proceeding with remedial action under CERCLA (B)(iv) Obtained court order or issued UAO under either CERCLA 106 or RCRA 7003, pursuant to which PRP is diligently conducting RI/FS, removal action, or remedial action. N.B.: Citizen suit is barred only as to the scope and duration of the court order or agency order. (C)(i) Commenced and prosecuting a civil action under RCRA 7002(a) to abate imminent hazard EPA or State EPA State 19

20 Statutory Defenses (cont d) The defense where the State has commenced an action effectively creates a race to the courthouse. If private plaintiff sues before the state files its suit, then this defense is probably unavailable. But if the order of filing is reversed, then the private claim is potentially barred. See, e.g., California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., 728 F.3d 868, 873 (9th Cir. 2013) (construing identical language of Clean Water Act); Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011); Chesapeake Bay Found. v. Am. Recovery Co., 769 F.2d 207, (4th Cir. 1985) (private claim not barred where it was filed just hours before the state lawsuit) (construing identical language of Clean Water Act). 20

21 Statutory Defenses (cont d) The defense for court and agency orders also contains an unusual twist: the citizen suit is barred only as to the scope and duration of the court order or agency order. So if agency order addresses ground water contamination but not air emissions, then a citizen suit seeking to address air emissions would not be barred. On top of that, this limitation also interacts with the race to the courthouse above. For example, if the State filed first, then the scope of the private claim must still be essentially the same as the scope of the State s claim in order to be precluded. In other words, if the private claim is broader than, or different in focus from, the State s first-filed claim, then the state claim will not preclude the different or broader aspects of the private claim. See, e.g., California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., supra, 728 F.3d at 874 (private claim precluded only where first-filed State suit seeks the same relief as the private suit); Adkins v. VIM Recycling, Inc., supra, 644 F.3d at 494 ( RCRA allows the plaintiffs to pursue their claims that are beyond the scope of the first [state agency] suit. ); Francisco Sanchez v. Esso Oil Co., 572 F.3d 1 (1st Cir. 2009) (private claim not barred by first-filed State agency suit where scope of contamination was broader and injunctive relief sought was broader). 21

22 Statutory Defenses (cont d) The next issue is what constitutes diligent prosecution. Courts have generally held that administrative actions are not court actions for purposes of preclusion. As a result, the following actions have not been considered diligent prosecution: EPA compliance orders, state administrative actions, and negotiations between the state and the alleged violator. Courts are split on whether agreements between the state and the alleged violator, even if they have been filed in state court, constitute diligent prosecution. Various governmental actions taken under the federal Superfund law will serve to preclude a citizen suit to abate an imminent and substantial endangerment. The provisions of Section 7002(b) are fairly detailed in this regard, but the statutory language is opaque and leaves room for creative lawyering. One court held that EPA s placement of a site on CERCLA s National Priority List, and the conduct of a remedial investigation and feasibility study by the private defendant, barred a citizen suit even in the face of allegations that these actions were insufficient. Citizen suits will not be precluded, however, if deadlines are not being met and the government is not acting to ensure timely compliance. 22

23 Other Statutory Defenses Finally, RCRA contains a non-duplication provision that has been used creatively. Section 1006(a) of RCRA provides: Nothing in this [Act] shall be construed to apply to... any activity or substance which is subject to the [Clean Water Act or the Safe Drinking Water Act]... except to the extent that such application... is not inconsistent with the requirements of such Acts. In one case, Plaintiffs sought to enjoin a large animal feedlot and dairy farm, including the application of manure to the land. Defendants argued that they were regulated under the Clean Water Act ( CWA ). Plaintiffs had also sought relief under the CWA, but the district court ruled that the CWA s permit-as-shield provision barred those claims. Defendants urged that applying RCRA to their CWA-regulated operations would yield inconsistent results just what RCRA 1006(a) forbids. The district court agreed that allowing the RCRA claim to proceed would be construing RCRA as inconsistent with CWA s permit shield. Coon v. Willet Dairy, 5:04-CV-917, 2007 WL (N.D.N.Y. July 17, 2007). 23

24 Other Defenses: Primary Jurisdiction Administrative law doctrine whereby courts recognize the special competence of the expert regulatory agency. A prudential common-law concept applied when resolution of a particular claim requires consideration of facts or issues deemed to be within the special competence of an administrative agency. Wilson v. Amoco Corp., 989 F. Supp. 1159, 1169 (D. Wyo. 1998). A good fit in the environmental area due to agency expertise on such issues as sampling and analysis, toxicity evaluation, risk assessment, environmental remediation, etc. This is why it has the potential to swallow up the congressionallyauthorized imminent hazard suit. 24

25 Other Defenses: Primary Jurisdiction (cont d) The majority of reported decisions reject the defense of primary jurisdiction as an unwarranted end run around RCRA s citizen suit provision. See, e.g., Raritan Baykeeper v. NL Industries, Inc., 660 F.3d 686 (3d Cir. 2011); Boyes v. Shell Oil Products Co., 199 F.3d 1260 (11th Cir. 2000); PMC, Inc. v. Sherwin Williams Co., 151 F.3d 610 (7th Cir. 1998); DMJ Associates, LLC v. Capasso, 228 F. Supp. 2d 223 (E.D.N.Y. 2002); Wilson, 989 F. Supp. at 1170 ( Other courts have held, and this Court agrees, that questions posed by RCRA and the CWA are not so esoteric or complex as to foreclose their consideration by the judiciary. ). Even if the argument is unlikely to be succeed, it might still be worth invoking. At a minimum, it could help the court appreciate the extent to which the regulatory, technical, and policy judgments involved in assessing alleged imminent hazards are complex and so best left to the expert agencies, which are better equipped to address them consistently. 25

26 Other Defenses (cont d): Abstention Related doctrines of federal jurisdiction that seek to avoid interference with state proceedings on complex issues of state law. Burford Abstention Burford v. Sun Oil, 319 U.S. 315 (1943) Colorado River Abstention Colorado River Water Conservation Dist v. United States, 424 U.S. 800 (1976). Abstention typically defers rather than defeating -- federal litigation pending completion of the state proceeding. May be applicable where a pending state administrative or judicial proceeding will decide an issue relevant to challenged operations. Generally rejected as a basis for abstaining from deciding the RCRA citizen suit. 26

27 Implications of Imminent Hazard Suits Imminent and Substantial Endangerment claims have a broad reach: Extends to solid waste & oil which are not covered by CERCLA. Petroleum contaminated soil constitutes solid waste. Recent case law suggestive of air emissions carry waste particulates are also covered by RCRA. Provides for injunctive relief. However, no recovery for monetary recovery. Do not need to demonstrate actual damages-in-fact. Rather, triggered by the threat of increased risk or endangerment. Provides an award of attorney s fees and costs. Interfaith Community Organization v. Honeywell International, Inc., 336 F. Supp. 2d 370 (D.N.J. 2004) (RCRA plaintiff sought fees and costs totaling over $12 million). Retroactive effect of statute. See, e.g., Petropoulos v. Columbia Gas of Ohio, Inc., 840 F. Supp. 511, 514 (S.D. Ohio 1993) No statute of limitations; avoiding remedy selection issues associated with CERCLA. 27

28 REQUIREMENTS OF RCRA CITIZEN SUIT Risk of harm must exist (i.e., threatens to occur immediately), although the threat of the impact need not occur immediately; The threat of endangerment must be substantial and more than mere speculation; Recovery related to Solid or Hazardous waste; and Causation a causal link between offending conduct and condition sought to be remedied. 28

29 DEMONSTRATING IMMINENT & SUBSTANTIAL ENDANGERMENT Imminent and Substantial Endangerment Requirement has been provided an expansive definition. Lenient and sweeping provision. Imminent requires only that the harm poses a near-term threat Does not require a showing that harm will necessarily occur or that actual damage will manifest immediately. Meghrig v. KFC Western, Inc., 516 U.S. 479, (1996). May and Endanger only require that there is a reasonable prospect of future harm. Does not require proof of actual harm or even risk of harm. Maine People s Alliance v. Mallinckrodt, 471 F.3d 277 (1st Cir. 2006), cert. denied 128 S. Ct. 93 (2007). An endangerment is substantial if there is some reasonable cause for concern that someone or something may be exposed to risk or harm if remedial action is not taken. 29

30 Demonstrating the Imminence Requirement: Risk Threatening to Occur Immediately A finding of immanency, does not require a showing that actual harm will occur immediately as long as the risk of threatened harm is present. The statutory requirement can be satisfied even if the actual harm might not be likely to occur for a long time, so long as the defendant s current or past actions create a present risk that the harm will eventually come to pass. Burlington Northern and Santa Fe Railroad Co. v. Grant, 505 F.3d 1013, (10th Cir. 2007). In Maine People's Alliance v. Mallinckrodt Inc., 471 F.3d 277, 288 (1st Cir. 2006), cert. denied 128 S. Ct. 93 (2007), Plaintiff Citizen s Group and Natural Resources Defense Council sought additional study of downstream mercury contamination in the Penobscot River caused by past industrial uses. The court held that it is merely the threat that must be close at hand, even if the perceived harm is not. 30

31 Demonstrating the Imminence Requirement: More than Speculation A vague possibility of future harm is not sufficient to meet the requirements of RCRA s citizen suit provision, rather the statute requires a showing that there is a threatened or potential harm where there is a reasonable cause for concern that someone or something may be exposed to risk of harm by release (or threatened release) of hazardous substances in the event that no remedial action is taken. In Chemical Weapons Working Group, Inc. v. U.S. Department of Defense, 61 F. App'x 556 (10th Cir. 2003), three non-profit public interest groups brought suit against two federal agencies and a corporation retained by the Department of Defense to operate a chemical agent disposal facility, seeking relief under RCRA and other environmental statutes in connection with alleged violations at the facility. The Tenth Circuit opined that the plaintiffs assertion that it is expected that such incidents [i.e., release of hazardous waste] will continue to occur was not sufficient and that such an openended allegation such as that does not satisfy the standards in RCRA. Id. at

32 Demonstrating the Imminence Requirement: More than Speculation (cont d.) City of Fresno v. U.S., 709 F. Supp. 2d 934 (E.D. Cal. 2010). City brought RCRA suit against company relying on allegations that the company cause and/or permitted the release of TCP contaminants at an airport. The Court concluded that the mere existence alone of the contaminants is not sufficient and plaintiff needed to do more than recite the words imminent and substantial to demonstrate a sufficient health risk to support a RCRA citizen suit. Although the City's expert recited 6972(a)(1)(B)'s magic words, [his] deposition testimony... lacks the factual detail and specific exposure evidence necessary to support a RCRA citizen suit. Id. at

33 Demonstrating the Imminence Requirement Interfaith Community Organization, et al. v. Honeywell International, Inc., et al., 399 F.3d 248 (3d Cir. 2005). Non-profit community organization and its members brought action against successor-in-interest to chemical manufacturer and current owners and lessees of contaminated chromium production site under RCRA, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and state law, seeking declaratory and injunctive relief. In finding that Plaintiff s had shown actual harm to health and the environment, the court noted that in applying the imminent and substantial endangerment standard, courts should err in favor of protecting human health and the environment. The Court also rejected defendant s arguments regarding the scope of the courts equitable powers in fashioning injunctive relief under RCRA, noting that the enforcement language of 6972(a)(1)(B) is generous and that authority to enforce is more than the authority to declare that a requirement exists and repeat that it must be followed. As long as the court s equitable measures are reasonably calculated to the remedy establishing the wrong, they are not an abuse of discretion. Id. at

34 Demonstrating the Imminence Requirement: Necessity Trinity Industries, Inc. v. Chicago Bridge & Iron Company, 735 F.3d 131 (3d Cir. 2013). Owner of industrial site (Trinity) brought action against former owner, seeking injunctive relief (among other claims) from former owner of facility. At the time of the suit, Trinity was undertaking remediation of the site pursuant to court order. Trinity sought injunctive relief against former owner, requiring it to partake in the remediation. Despite demonstrating that the former owner of the site met all the necessary elements of a 7002(a)(1)(B) claim, the Third Circuit affirmed the District Court s holding finding that because the Consent Order already required Trinity to remediate all contamination at the site, an injunction directing the former owner to engage in the cleanup was not warranted. The court concluded that Trinity had not sufficiently demonstrated that the former owner s participation in the remediation was necessary and that Trinity had not argued that the remediation scheme of the Consent Order was defective and the remediation scheme was already in place and appeared to be effective. 34

35 Demonstrating the Imminence Requirement: Court Treatment Parker v. Scrap Metal Processors, Inc., 386 F.3d 993 (11th Cir. 2004). Property owners brought action against owner of adjoining property where scrap metal business was located. Jury s finding that scrap metal facility may present imminent and substantial threat to health or environment was supported by evidence presented at trial which included evidence that lead and other heavy metals had leaked from liquid waste drums onto the ground, that facility had accepted and disposed of electrical transformers and car cushion materials that were known sources of polychlorinated biphenyls and lead, and that materials found on property could affect central nervous system, cause problems in upper respiratory system, and affect a person s motor skills. Landowner violated open dumping prohibition of RCRA. Under the RCRA, any solid waste management practice or disposal of solid waste which constitutes the open dumping of solid waste or hazardous waste is prohibited. 42 U.S.C. 6945(a). An open dump is defined as any facility or site where solid waste is disposed of which is not a sanitary landfill which meets the criteria promulgated under section 6944 of this title and which is not a facility for disposal of hazardous waste. 42 U.S.C. 6903(14). 35

36 Demonstrating the Imminence Requirement: Court Treatment (contd.) Burlington Northern and Santa Fe Railway Company v. Grant, 505 F.3d 1013 (2007): Property owner brought action under Resource Conservation and Recovery Act (RCRA) and state law to recover damages caused by purported migration of tar-like material (TLM) from adjacent property and to obtain injunctive relief. In finding that genuine issues of material fact existed regarding whether TLM migration presented imminent and substantial endangerment to health or the environment, the court noted that while an endangerment must be ongoing, the conduct that created the endangerment need not be. The court also noted that endangerment is substantial, for purposes of RCRA s imminent hazard citizen suit, where there is reasonable cause for concern that someone or something may be exposed to risk of harm by release, or threatened release, of hazardous substances in event remedial action is not taken. 36

37 Demonstrating the Imminence Requirement: Presence of Contamination Alone Is Not Enough Presence of contamination alone is not enough to establish the existence of an imminent and substantial risk of endangerment. In Lewis v. FMC Corp., 786 F. Supp. 2d 690, (W.D.N.Y. 2011), the district court held that evidence that soil arsenic levels in area around pesticide formulations facility exceeded state cleanup standards was insufficient to establish present imminent and substantial risk of endangerment to surrounding residents, and thus did not establish claim under Resource Conservation and Recovery Act's (RCRA) citizen suit provision, where there was no evidence linking cited standards to potential imminent and substantial risks to human health or wildlife. Id. Two Rivers Terminal, L.P. v. Chevron USA, Inc., 96 F. Supp. 2d 432 (M.D. Pa. 2000) Proof of the mere detection of some measurable amount of hazardous materials on a property is not enough to maintain a RCRA claim. Court rejected plaintiff s argument that the mere presence of contaminants create[d] an imminent and substantial endangerment. 37

38 Demonstrating the Imminence Requirement: Court Treatment (contd.) In Little Hocking Water Ass'n, Inc. v. E.I. du Pont Nemours & Co., No. 2:09-CV-1081, 2015 WL (S.D. Ohio Mar. 10, 2015), non-profit public water provider was allowed to proceed with RCRA citizen suit, finding that air emissions containing contaminated particulates could become solid waste, therefore, satisfying RCRA s imminent and substantial endangerment requirement. Seepage and Runoff Plaintiff argued that contamination occurred as a result of direct discharge into Ohio River, as well as seepage into groundwater and the river from a landfill, from rainwater infiltration of contaminated soils at the facility, and from storm water runoff. Court determined that discharges from point sources (including portions of storm water runoff) were excluded from RCRA s definition of solid waste and were instead governed by the Clean Water Act s permitting program. The seepage and storm water runoff that did not emanate from the specific point sources covered by permits, however, could constitute solid waste under RCRA. Air Emissions Plaintiff argued that contaminated particulates contained in air emissions from defendant s smokestacks were dispersed by wind, settled on the well fields surface soil, and then leached into the aquifer which supplied wells through both flooding and rain. Court rejected defendant s argument that the air emissions did not constitute either disposal or solid waste under RCRA. Court concluded that, within the meaning of RCRA, solid particulate matter constituted solid waste. Court also took expansive reading of disposal, noting RCRA s legislative history and underlying goals of RCRA, in addition to the statute s wording of disposal. 38

39 Demonstrating the Imminence Requirement: Court Treatment (contd.) Citizens Coal Council v. Matt Canestrale Contracting, Inc., 51 F. Supp. 3d 593 (W.D. Pa. 2014), Corporation that advocated for abatement of pollution from mines brought RCRA citizen suit action against operator of coal refuse disposal site to abate an imminent and substantial endangerment to health or the environment allegedly caused by solid waste located at the site. Court denied defendant s motion to dismiss claim under RCRA for imminent and substantial endangerment based on coal combustion byproducts emitted into the air from storage piles and trucks. 39

40 Demonstrating the Imminence Requirement: Court Treatment (contd.) Community Association for Restoration of the Environment, Inc. v. Cow Palace, LLC, No. 13-CV-3016-TOR, 2015 WL (E.D. Wash. Jan. 14, 2015) motion to certify appeal denied, No. 2:13-CV-3016-TOR, 2015 WL (E.D. Wash. Jan. 28, 2015). Non-profit public interest corporations brought action against commercial dairy and its owners, alleging that dairy's manure management practices presented an imminent and substantial endangerment to public health in violation of the Resource Conservation and Recovery Act (RCRA). Court concluded that manure stored in commercial dairy s lagoons was solid waste within meaning of RCRA and that the commercial dairy farm s operations involving use of the manure may present an imminent and substantial endangerment to the public who were consuming contaminated water as a result of excess nitrate levels found in the groundwater stemming from the dairy farm s operations, in violation of RCRA. Under RCRA, the term imminent does not require a showing that actual harm will occur immediately, so long as the risk or threatened harm is present. Substantial endangerment within meaning of RCRA does not require proof of actual harm; rather a threatened or potential harm. Court opined that to state a claim predicated on RCRA liability for contributing to the disposal of hazardous waste, a plaintiff must allege that the defendant had a measure of control over the waste at the time of its disposal or was otherwise actively involved in the waste disposal process. Id. at *42. Under RCRA, contribute means to lend assistance or aid to a common purpose, have a share in any act or effect, be an important factor in, or help to cause. 40

41 LITIGATION TIPS Notice Requirement Jurisdictional Prerequisite Plaintiff must provided defendant with 90 days notice of alleged violating conduct and must allow sufficient detail to allow for appropriate correction. Many plaintiffs overlook EPA s regulations prescribing the content of RCRA notices. 40 C.F.R. Part day notice requirement for suits brought under 6972(a)(1)(A) (for violation of specific RCRA requirement). Notice must not just be provided to the defendant, but also Government (the state and the US Environmental Protection Agency). Exception for hazardous waste action may be brought immediately after notification Party s failure to provide appropriate notice is fatal. Hallstrom v. Tillamook County, 493 U.S. 20 (1989). 41

42 LITIGATION TIPS Complaint All but one Circuit (6 th Circuit) has held that federal courts have exclusive jurisdiction over RCRA Claims, so a party cannot sue in state court Defendant is a person in any way responsible for creating an imminent and substantial endangerment Plaintiff must allege they provided defendant with notice and also served copies on the State and EPA Standing Relief Sought Injunctive and/or declaratory relief - e.g. investigate, abate and remediate Award of attorneys and experts witness fees and costs District Judge has discretion to award attorney and expert fees to prevailing parties Practical considerations Pairing RCRA claims with other environmental claims, e.g. CERCLA 42

43 LITIGATION TIPS Standing. any person may commence a civil action against against any other person, including the United States or against any other any governmental instrumentality or agency..subject to the eleventh amendment Application of traditional Article III standing analysis. Maine People's Alliance And Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir. 2006) ( Because there is nothing in RCRA s text or history that suggests a congressional intent to erect statutory standing barriers beyond those imposed by Article III of the Constitution and because [the defendant] has not identified any prudential standing concerns, we focus on what is essential to establish Article III standing. Those requirements are expressed in a familiar three-part algorithm: a would-be plaintiff must demonstrate a concrete and particularized injury in fact, a causal connection that permits tracing the claimed injury to the defendant's actions, and a likelihood that prevailing in the action will afford some redress for the injury. ). Little Hocking Water Ass'n, Inc. v. E.I. du Pont Nemours & Co., No. 2:09-CV-1081, 2015 WL , at *8 (S.D. Ohio Mar. 10, 2015) ( This Court finds that an individual person or company can establish standing to pursue a citizen's suit under RCRA by alleging injury-infact due to the presence of contamination on its property, traceable to the Defendant, which may cause substantial and imminent harm to health or the environment. ). Waiver of sovereign immunity by United States RCRA actions against state agency officials 43

44 LITIGATION TIPS Is alleged endangerment substantial? Importance of expert witness testimony. Need to demonstrate substantiality of endangerment. Use of expert reports and testimony based upon risk assessments. Findings made by EPA or state agencies in administrative orders, directives or consent decrees Is alleged endangerment imminent? Alleged endangerment predicated upon speculative development plans or other fact patterns where no exposure pathways exist? Does contamination actually pose a risk a some point? E.g., claim of endangerment of human health and safety resulting from contaminated ground water, but where groundwater is not used for drinking, etc. 44

45 Case Study Litgo v. Commissioner of NJDEP Contaminated industrial site in Somerville, NJ Somerville Iron Works WWII aircraft parts Post-war industrial and warehousing operation Purchased by Litgo for redevelopment during ongoing NJDEP cleanup NJDEP botched cleanup and found responsible for releases Extensive TCE groundwater plume Resulted in closing of municipal wells in adjacent municipality NJDEP pursued Litgo for cleanup under NJ State environmental laws Litgo brought RCRA citizen suit against NJDEP Commisioner Complaint amended multiple times to add CERCLA and other claims, as well as additional parties 45

46 Case Study - Litgo v. Commissioner of NJDEP Use of early motion practice What discovery made a difference and what didn t? Considerations for full or partial summary judgment motions Effective use of Experts What made a difference at trial? Taking advantage of settlement opportunities at different stages of the case Importance of narrowing the issues for appeal Other lessons learned 46

47 Thank You Questions? Michael W. Steinberg John McGahren 47

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