RCRA Citizen Suits: Key Defenses and Interpretive Trends

ACI s Chemical Products Liability & Environmental Litigation April 28-30, 2014 RCRA Citizen Suits: Key Defenses and Interpretive Trends Karl S. Bourdeau Beveridge & Diamond, P.C. kbourdeau@bdlaw.com 1

Overview of Presentation Overview of RCRA Citizen Suit Framework Big Picture Considerations Defenses Based on Notice Failures and Deficiencies Defenses Based on Government Action Under CERCLA or RCRA Defenses Based on Primary Jurisdiction and Abstention Defenses Based on Standing Defenses Based on Lack of Imminent or Substantial Harm Award of Attorney Fees/Litigation Costs 2

Overview of RCRA Citizen Suit Framework Three types of citizen suits under Section 7002 of RCRA: 42 U.S.C. 6972(a)(1)(A): against any person... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to [RCRA] (emphasis added). 42 U.S.C. 6972(a)(1)(B): against any person... 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 (emphasis added). 42 U.S.C. 6972(a)(2): against Administrator for alleged failure to perform non-discretionary act or duty. 3

Big Picture Considerations Considerable Use of RCRA Citizen Suit Provision Evolving and Dispositive Case Law Early Use of Notice/Diligent Prosecution/Primary Jurisdiction Defenses Understanding of Imminent and Substantial Endangerment Standard Attention to Possible Awards of Civil Penalties and Attorney Fees/Litigation Costs 4

Defenses Arising From Notice Failures and Deficiencies Prior to filing RCRA citizen suit, notice must be given to EPA, the state in which the alleged violation or endangerment occurs, and the defendant. Reflects Congressional preference for government to take lead enforcement role, not citizens. 60-day notice required for suits brought under 6972(a)(1)(A) (violation of specific RCRA requirement), and 90-day notice required for suits under 6972(a)(1)(B) (imminent and substantial endangerment). Note exception for citizen suits alleging violations of Subtitle C hazardous waste provisions, which can be filed immediately after providing notice. 5

Defenses Arising From Notice Failures and Deficiencies Courts are divided as to whether notice provisions are jurisdictional, but notice deficiencies generally mandate dismissal. For citizen suits alleging a violation of a RCRA standard or failure of EPA to act, 40 C.F.R. 254.3 governs what the notice must contain. Note: Regulatory notice requirements are often overlooked by plaintiffs. Dismissal for lack of notice is without prejudice, and plaintiffs may re-file after compliance with notice provisions. Dismissal for inadequate notice provides strategic advantage of restarting clock on RCRA s notice and delay period, which may allow time for triggering of other statutory bars to suit. 6

Defenses Arising From Notice Failures and Deficiencies Notable decisions: Hallstrom v. Tillamook Co., 493 U.S. 20, 29 (1989) (Congress enacted notice provisions to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits. ). Beazer East, Inc. v. United States Navy, 1997 U.S. App. LEXIS 6746 (4th Cir. 1997) (holding court lacked subject matter jurisdiction to hear RCRA claim without proper notice); but compare Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011) (stating that RCRA notice and delay requirements are clearly not jurisdictional). Brod v. Omya, Inc., 653 F.3d 156 (2d Cir. 2011) (applying specificity required by 40 C.F.R. 254.3 to RCRA regulatory violation claim (and imminent endangerment claim) to affirm dismissal where notice only identified waste practices and failed to identify specific contaminants). 7

Defenses Based on Government Action Under CERCLA or RCRA 8 Type of Government Action Certain RCRA suits barred where government is diligently prosecuting an action. Certain RCRA suits barred where state or federal government is actually engaging in a CERCLA 104 removal action. Comments Government suit must precede filing of citizen suit. Majority of courts require filing of suit in court, but minority have held that administrative actions may suffice to bar citizen suits. The state or EPA action must be brought under the enumerated RCRA or CERCLA provisions. Suits brought under other authorities will not bar the RCRA suit. Plaintiffs have burden of proving prosecution is not diligent; burden is heavy. Courts have found that consent decrees and their oversight amount to diligent prosecution. Only bars imminent and substantial endangerment suits. Only applies to state or EPA removal actions taken pursuant to CERCLA 104; removal actions taken pursuant to other authority (e.g., CERCLA 120) would not bar RCRA citizen suit. Triggered only where removal, not remedial, actions are taken at a site. Whether actions are removal actions is fact specific but courts generally find any actions consistent with initial investigations, monitoring, and initial short-term cleanup constitute CERCLA removal actions.

Defenses Based on Government Action Under CERCLA or RCRA Type of Government Action Certain RCRA suits barred where federal or state government has incurred costs to initiate a [CERCLA 104] RI/FS and is diligently proceeding with a remedial action. Comments Only applies to bar imminent endangerment citizen suits. The state or federal remedial action must be taken pursuant to CERCLA 104. Remedial action is defined very broadly, overlaps with definition of removal action, and is determined on a case by case basis, but generally consists of those actions consistent with a permanent remedy. Some courts have barred suits upon finding clear evidence that costs have been incurred to initiate an RI/FS but little evidence of actual remedial action. Enforcement negotiations and enforceable agreements related to remedial actions should suffice. 9

Defenses Based on Government Action Under CERCLA or RCRA Type of Government Action Certain RCRA suits barred where EPA has obtained a court order (including a consent decree) or issued an administrative order under CERCLA 106 or RCRA 7003, pursuant to which responsible party is diligently conducting a removal action, RI/FS, or a remedial action. Comments Only applies to bar imminent endangerment citizen suits. Some courts have ruled that this provision only bars RCRA actions that were filed after issuance of the consent decree or order; it does not bar the continuation of citizen suits filed prior to a consent decree or order. EPA (not a state) must have actually obtained a court order (including a consent decree entered by court) or issued an administrative order under CERCLA 106 or RCRA 7003. Administrative orders or consent decrees under any provision other than CERCLA 106 or RCRA 7003 are not sufficient to bar RCRA citizen suit. If the order obtained is a unilateral administrative order or administrative consent order (rather than court order or consent decree entered in court), the suit is prohibited only as to the scope and duration of the administrative order. By contrast, court orders (and court entered consent decrees) have the effect of prohibiting the RCRA suit even if the RCRA suit addresses matters beyond the scope of the order/decree. 10

Defenses Based on Government Action Under CERCLA or RCRA Type of Government Action Any RCRA citizen suit is barred under CERCLA if it challenges a removal or remedial action selected under [CERCLA 104]. 42 U.S.C. 9613(h). Comments CERCLA 113(h) was enacted to assure that where the government takes action to address waste sites, the cleanup will not be interrupted by intrusive litigation. Federal courts have used CERCLA 113(h) to dismiss many RCRA citizen suits. Must have an ongoing (not completed) CERCLA removal or remedial action. Fact-specific inquiry into what actions were taken at site even very minimal levels of government action to clean up may be sufficient to bar RCRA citizen suit. The RCRA lawsuit must challenge the CERCLA cleanup action. Majority of courts find that lawsuits seeking an injunction nearly always are impermissible challenges because injunctions require the court to determine what remediation is necessary. Removal or remedial action must be taken pursuant to CERCLA 104 and not, e.g., 120 for federally owned sites or other authority. 11

Defenses Based on Primary Jurisdiction and Abstention Under the doctrine of primary jurisdiction, a federal court may stay proceedings where a claim involves issues within the special competence of an administrative body. Factors weighed by courts include: whether court is being asked to decide factual issues not within conventional experience of judges or whether issues are of the sort a court routinely considers; whether defendants could be subjected to conflicting orders of the court and the administrative agency; whether relevant agency proceedings have actually been initiated; whether the agency has demonstrated diligence or has allowed issue to languish; and the type of relief requested (e.g., whether plaintiff is seeking injunctive relief of technical or scientific nature). 12

Defenses Based on Primary Jurisdiction and Abstention While majority of courts have declined to apply primary jurisdiction to RCRA citizen suits, the doctrine has been found applicable where: a consent order with the state completely overlapped with the relief sought by plaintiff s RCRA claims; where EPA investigation and remediation had been diligent and ongoing for many years; injunctive relief ordered by court could be conflicting; where state agency had extensive involvement in addressing alleged contamination and federal court intervention could result in delay of state response or substantial duplication of effort. 13

Defenses Based on Primary Jurisdiction and Abstention Notable primary jurisdiction decisions: Interfaith Cmty. Org., Inc. v. PPG Indus., 702 F. Supp. 2d 295 (D.N.J. 2010) (declining to apply primary jurisdiction where a consent decree did not cover all remedies sought by the plaintiffs, and the remedies available from the court could be far broader than those of the consent decree); City of Hattiesburg v. Hercules, Inc., No. 2:13-cv-208 (S.D. Miss. March 27, 2014) (declining to apply doctrine based on view that federal courts should exercise jurisdiction absent satisfaction of RCRA statutory bar). But cf. SPPI-Somersville Inc., v. TRC Co., 2009 LEXIS U.S. Dist. 74464, *53- *54 (N.D. Cal. 2009) (applying primary jurisdiction because there is no basis for the relief plaintiffs seek because the contamination is already being addressed... through the Consent Order and the [Remedial Action Plan]. ); McCormick v. Halliburton Co., 2012 U.S. Dist. LEXIS 46661 (W.D. Okla. 2012) (where defendant entered into consent order with state agency requiring, inter alia, investigation, remediation, and reporting, court found all relevant factors favored application of primary jurisdiction and dismissed RCRA claim). 14

Defenses Based on Primary Jurisdiction and Abstention Abstention concerns proper jurisdictional balance between state and federal courts, and can provide a basis for dismissal of a federal court complaint. Defendants in RCRA citizen suits most frequently invoke doctrine known as Burford abstention, which applies where a federal suit will interfere with a state administrative agency s resolution of difficult and consequential questions of state law or policy doctrine. Courts have also applied Colorado River abstention in RCRA citizen suits, which permits federal courts to defer to a concurrent state court proceeding as a matter of wise judicial administration. 15

Defenses Based on Primary Jurisdiction and Abstention Courts may apply Burford abstention where timely and adequate state court review is available, and: there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar; or the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. 16

Defenses Based on Primary Jurisdiction and Abstention Several courts have rejected arguments to dismiss RCRA claims based on abstention, including the First, Third, and Seventh Circuits within the past three years. 17 These decisions were based primarily on rationale that Congress intended federal courts to exercise jurisdiction over RCRA citizen suits, and decline jurisdiction only in the limited instances delineated in the statute itself. However, some courts have precluded RCRA claims based on Burford abstention, e.g., with respect to citizen suits challenging agency permitting, licensing or siting decisions under state law, because such suits are collateral attacks on agency decision-making not within the purposes of RCRA.

Defenses Based on Primary Jurisdiction and Abstention Notable abstention decisions: Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011) (declining to apply abstention); Chico Serv. Station, Inc. v. SOL P.R. Ltd., 633 F.3d 20 (1st Cir. 2011) (same); Raritan Baykeeper v. NL Industries, 660 F.3d 686 (3d Cir. 2011) (same). But cf. Starlink Logistics, Inc. v. ACC, LLC, 2013 U.S. Dist. LEXIS 7553 (M.D. Tenn. 2013) (applying abstention to stay RCRA claim until conclusion of state review); Stratford Holding, LLC v. Foot Locker Retail, Inc., 2013 U.S. Dist. LEXIS 145120 (W.D. Okla. 2013) (where plaintiff was required to conduct remediation under consent order and brought RCRA citizen suit seeking defendant s participation, court applied mootness and abstention doctrines to dismiss). 18

Defenses Based on Standing Article III requires that a citizen plaintiff must show they have (1) suffered an injury (may be aesthetic or environmental or health-based) which is concrete and particularized, and actual or imminent; (2) the defendant s actions caused that injury; and (3) a favorable decision will redress the plaintiff s injury. When a defendant challenges standing at the summary judgment stage, plaintiff cannot rest on mere allegations -- must actually demonstrate a factual showing of perceptible harm, causation, and redressibility. Economic injury, in addition to environmental or health injury, is sufficient to confer standing (basis for current owners of industrial facilities to sue former owners of those facilities). 19

Defenses Based on Standing Standing can be a powerful defense in contexts common to RCRA, particular with respect to injury in fact and redressability requirements. Where a remediation plan is in place and cleanup is ongoing, plaintiff may lack an injury capable of redress because court cannot order superfluous relief (and RCRA does not allow for recovery of past cleanup costs). Where plaintiff no longer owns the property at issue (or has no other legally cognizable interest in property) there is no injury and no redress available. 20

Defenses Based on Standing Notable decisions: Gulf Coast Asphalt Co., LLC v. Chevron U.S.A. Inc., 2010 U.S. Dist. LEXIS 90334 (S.D. Ala. 2010) (plaintiff lacked injury in fact where it was not owner of property at commencement of suit, and claimed plans to develop property were unsupported by evidence). Doyle v. Town of Litchfield, 372 F. Supp. 2d 301 (D. Conn. 2005) (plaintiff lacked standing on redressability grounds where he had no ownership or other interest in property, and therefore remedial action would not benefit him). SPPI-Somersville, 2009 U.S. Dist. LEXIS 74464 at *44 ( Whether this is viewed as a lack of standing because the harm will not be redressed by this Court, or as a failure to demonstrate entitlement to relief under RCRA, the problem is the same: there is no basis for the relief plaintiffs seek because the contamination is already being addressed... through the Consent Order. ) 21

Defenses Based on Lack of Imminent or Substantial Harm 6972(a)(1)(B) suits must show that the defendant s actions may present an imminent and substantial endangerment to health or the environment. Imminent means only that the harm is of a kind that poses a near-term threat; there is no corollary requirement that the harm necessarily will occur or that the actual damage will manifest itself immediately. Substantial implies serious harm. Endangerment to health or the environment may and endanger do not require actual harm, but rather, only potential harm; however, endangerment can not be de minimis, remote in time, or speculative. 22

Defenses Based on Lack of Imminent or Substantial Harm Defenses based on lack of imminence or substantial harm can be effective in RCRA citizen suits, including on summary judgment. Examples include where: the endangerment is premised on speculative development plans or contingencies (e.g., uncertain future use of groundwater for drinking water due to water use restrictions) plaintiff cannot establish an exposure pathway, notwithstanding existence of contamination (risk is de minimis, not substantial) Situations found to present an imminent and substantial endangerment include: documented failure of remediation to contain contamination (e.g., holes in lining of pits); evidence of human trespass (particularly children); explosive materials; and contaminants leaching to surface soils and water. 23

Defenses Based on Lack of Imminent or Substantial Harm Notable decisions: Meghrig v. KFC Western Inc., 516 U.S. 479, 486 (1996) ( [a]n endangerment can only be imminent if it threatens to occur immediately, and the reference to waste which may present imminent harm quite clearly excludes waste that no longer presents such a danger.) Price v. U.S. Navy, 39 F.3d 1011 (9th Cir. 1994) (finding no imminent and substantial endangerment, in part, because claimed endangerment was contingent on future destruction of house slab, which was unnecessary). 24

Defenses Based on Lack of Imminent or Substantial Harm Notable decisions: Crandall v. City of Denver, 594 F.3d 1231 (10th Cir. 2010) (finding no imminent and substantial endangerment, in part, because harm would occur only if defendants resumed activity (use of deicing fluid) and current remediation later proved ineffective). Grace Christian Fellowship v KJG Invs. Inc., 2009 U.S. Dist. LEXIS 76954 (E.D. Wisc. 2009) (denying injunctive relief under RCRA where plaintiff church failed to show evidence of an exposure pathway due to closure of church basement). 25

Attorney Fees/Litigation Costs Despite apparent lack of statutory basis, courts have established dual standards Plaintiffs: can succeed on any significant issue which achieves some of the benefit sought in suit Defendants: claim must be frivolous, unreasonable, or groundless Application of catalyst theory fees/costs where suit is impetus for voluntary change in defendant s conduct but plaintiff is not awarded relief (rejection of theory in RCRA suit in Kasza v. Whitman, 325 F.3d 1180 (9 th Cir. 2003)) 26

Questions? 27