RCRA Litigation and the Substantial Endangerment Requirement - - PowerPoint PPT Presentation

RCRA Litigation and the Substantial Endangerment Requirement

Defending RCRA Citizen Suits by Proving Plaintiff Failed to Demonstrate Imminent Harm

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THURS DAY, APRIL 5, 2012

Presenting a live 90-minute webinar with interactive Q&A

Andrew J. Carafelli, Dewhirst & Dolven, Denver Daniel Riesel, Prinicpal, Sive Paget & Riesel, New Y

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RCRA Imminent and Substantial Endangerment

Daniel Riesel

460 Park Avenue, 10th Floor New York City, NY 10022 212-421-2150 ext. 224 driesel@sprlaw.com

5

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

• r 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
• No statute of limitations

9

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

• Oklahoma v. Tyson Foods, Inc., No. 08-5154 (10th Cir. May 13, 2009)

10

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
• Hallstrom v. Tillamook County, 493 U.S. 20 (1989)

12

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.
• Only diligent government action is a barrier

13

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

• 87th St. Owners Corp. v. Carnegie Hill 87th 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
• ver 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

Illustrative Litigation

• Interfaith Community Org. v. Honeywell International, Inc.,

399 F.3d 248 (3rd Cir. 2005)

• Plaintiffs: Citizens living near hazardous waste site
• Relief Sought: injunction requiring defendant to remediate
• Holding: Injunction Granted
• Court found ample evidence of imminent & substantial

endangerment

• Contaminant levels at and around the site ranged 30-8,000 times
• ver state standards
• Millions of holes in the existing plastic liner
• Mortality rates for organisms on or near the site ranged from 50-

100% 16

Illustrative Litigation

• Maine People's Alliance v. Mallinckrodt Inc., 471 F 3d 277, 288 (1st
• Cir. 2006), cert. denied 128 S. Ct. 93 (2007)
• Plaintiffs: Citizen’s Group and Natural Resources Defense Council
• Relief Sought: additional study of downstream mercury

contamination in the Penobscot River caused by past industrial uses

• Holding: Injunction Granted – mandated study
• Court held that it is merely the threat that must be close at hand,

even if the perceived harm is not

• U.S. v. Envtl. Waste Control, Inc., 710 F.Supp. 1172, 1246 n.73 (7th
• Cir. 1990), cert. denied, 499 U.S. 975 (1991)
• Plaintiffs: EPA and Citizen Group
• Relief Sought: Citizen Group sought to close Defendant’s landfill
• Holding: Injunction granted
• Court noted that the same relief would be available to a citizen group

bringing a 7002 claim

17

Illustrative Litigation

• Zands v. Nelson, 797 F.Supp. 805 (S.D.Cal. 1992)
• Plaintiff: Current owner of a polluted site bringing suit against

past owner that operated a gas station

• Relief Sought: Remediation of the site
• Holding: On summary judgment past owners were found to be

responsible for contamination and the burden shifted to defendants to disprove liability

• RCRA’s citizen suit provision does not contain a statute of

limitations

• Meghrig v. KFC Western, Inc., 516 U.S. 479 (1996)

18

Questions

19

Anatomy of a RCRA Case

Crandall v. City & County of Denver Andrew J. Carafelli 303-757-0003 acarafelli@dewhirstdolven.com

20

• Started out as a mold case.
• Plaintiffs sought to enjoin airport from gate

de-icing.

• Numerous United Airlines Customer Service

reps complaining of being sickened by noxious

• dors at DIA.
• Focused on Concourse B
• No rhyme or reason to location of complaints,

timing of complaints or symptoms.

21

• When Plaintiff’s experts could not locate any

mold, focus turned to de-icing fluid.

• Main constituent- Propylene Glycol-

windshield wiper fluid, food additive.

• Plaintiffs alleging that de-icing fluid used to

de-ice planes at gates was seeping into basement through cracks in building and degrading –off gassing hydrogen sulfide. (rotten egg smell)

22

• DIA stopped gate de-icing shortly after lawsuit

was filed-moved planes to de-icing pads away from building.

• In order to prove prima facie case under RCRA

plaintiffs must prove that the defendant “contributed” to the hazardous condition.

• RCRA does not define “contribute”.
• “To act as a determining factor”, Hinds Invest.

L.L.P. v Team Enterprises, Inc., 2010 WL 1663986 E.D. Cal.

23

• RCRA requires “active involvement in handling or

storing materials” Sycamore Indus. Park Associates v Ericsson, Inc., 546 F.3d 847 (7th Cir. 2008)

• “ Have a part or share in producing an effect” Cox

v City of Dallas, Texas, 256 F.3d 281 (5th Cir. 2001)

• Obstructing access to land to prevent

remediation can be “contributing” Carlson v Ameren Corp, 2011 WL 223015 (C.D. Ill.)

24

• Plaintiffs need to prove solid waste was present

and that Denver had “contributed” to condition.

• Tested water in sumps and could find no

propylene glycol/ or small trace amounts.

• Found ethylene glycol( anti-freeze), oil, jet fuel,

all of which are organic compounds that can degrade and off gas hydrogen sulfide.

25

• Case now becomes a vapor intrusion case

where plaintiff alleges PG is in ground outside

• f basement and degrading and gas is seeping

in through cracks in walls.

• Base new allegations on foundation pit dug

years previously where contractor noted smell

• f de-icing fluid in water at bottom of pit.

26

• Best Practices in Defeating Claims
• Harm Occurred in past
• Plaintiffs could not prove PG was currently

in water or in ground.

• Number of Complaints had occurred prior

to cessation of gate de-icing.

• Plaintiffs could not show any recent

complaints that could be attributed to degrading glycol.

27

• Speculative Nature of Harm
• Plaintiff’s put on no medical evidence

connecting plaintiffs complaints with degrading glycol.

• Plaintiff’s Risk Assessment Expert’s opinion

was contingent opinion that was predicated

• n showing presence of PG.
• Plaintiff’s experts could not rule out other

sources of hydrogen sulfide.

28

• Denver conducted extensive air monitoring in

basement and Concourse, different times of year.

• Also had personnel respond to any odor

complaints with hand held monitors to establish no harmful levels.

29

• Litigation Issues
• Standing- Article Three - Harm in Fact
• Summary Judgment Considerations
• If conflicting expert reports, courts will almost

always find disputed issues of fact and deny motions.

• Expert Witnesses
• Essential for presentation of case- need to establish

for court the scope of the harm (is it past or present?); the speculative nature of the harm;

30