RCRA's (Resource Conservation and Recovery Act) imminent and substantial endangerment provision offers a potent legal tool for governments and citizens seeking comprehensive cleanups of contaminated sites. Perhaps due to its intimidating "imminent and substantial endangerment" burden of proof, RCRA suits are less prevalent than one might expect. Given broad judicial interpretations of RCRA's language, plaintiff's burden is easier than it appears. This article discusses the elements of RCRA endangerment actions and impediments to filing. It also addresses how RCRA endangerment suits may be used to advance significant environmental change, particularly in light of judicial cutbacks to Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution actions.
The Supreme Court's December 2004 decision curtailing CERCLA contribution actions and cutbacks in EPA enforcement have dimmed prospects for environmental progress. Amidst this downturn, a powerful cleanup mechanism remains. The Resource Conservation and Recovery Act (RCRA) authorizes governments, as well as impacted citizens, to sue in federal court to force contributors of waste to abate an imminent and substantial endangerment to health or the environment. This article discusses the elements of RCRA endangerment actions and explains how they can foster significant environmental gains.
Elements of a RCRA Endangerment Action
RCRA § 7002(a)(1)(B) allows any person to file suit in federal court against 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 which may present an imminent and substantial endangerment to health or the environment." A plaintiff must establish (1) the site may present an imminent and substantial endangerment to health or the environment; (2) the endangerment stems from the handling, storage, treatment, transportation or disposal of any solid or hazardous waste; and (3) the defendant is contributing to or has contributed to such handling, storage, treatment, transportation or disposal.
The key elements are described below
- Persons Liable
Section 7002(a)(1)(B) of RCRA holds liable any person who has contributed waste, regardless of when they "contributed" the waste. Though Congress did not define "contribute," courts have interpreted the term expansively. A recent court of appeals, referring simply to the dictionary, defines contribute as to "have a share in any act or effect." Past or present activity having any impact on a current imminent and substantial endangerment gives rise to liability. Transporters, disposers and generators are clear contributors. While an owner that allowed dumping on its property has been held as a contributor, courts are split as to the liability of a passive owner who acquires land after the dumping. Liability under RCRA is joint and several, unless the harm is divisible and there is a reasonable basis for apportionment.
- Solid or Hazardous Waste
RCRA is more expansive than CERCLA in that it covers not only "hazardous" but also "solid" waste. RCRA endangerment actions may address petroleum waste exempt from CERCLA. They may also seek to abate endangerments from operations such as manufactured gas plants whose waste may not be classified as hazardous. RCRA defines "solid waste" as "any garbage, refuse, sludge…and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining and agricultural operations."" Courts have interpreted ""solid waste"" to mean any materials ""that are truly discarded, disposed of, thrown away or abandoned."" Unless a discarded material is part of an ongoing industrial process and is actively being reused, it will, after it has served its intended purpose, constitute solid waste.
- May Present an Imminent and Substantial Endangerment
In enacting the endangerment provision, Congress addressed not only current, but also potential threats. The statute requires only that there "may" be an endangerment. A RCRA endangerment is substantial if it is "serious" or "if there is some reasonable cause for concern that someone or something may be exposed to a risk of harm…if remedial action is not taken." RCRA "does not require quantification of the endangerment (e.g. proof that a certain number of persons will be exposed)…or that a water supply will be contaminated to a specific degree." An endangerment is "imminent" if it "threatens to occur immediately," even "though the harm may not be realized for years." A finding of imminency does not require a showing that actual harm will occur immediately as long as the risks of threatened harm is present.
One court recently described RCRA as authorizing relief "if there is some reasonable cause of concern that someone or something may be exposed to risk or harm…if remedial action is not taken." By contrast, an imminent and substantial endangerment does not exist ""if the risk of harm is remote in time, completely speculative in nature or de minimis in degree." Though some courts have imposed additional hurdles such as contamination present above that considered acceptable by the state, a circuit court recently rejected these added requirements.
This lenient standard makes plaintiff's burden of proof rather easy. The United States Court of Appeals for the Seventh Circuit upheld a RCRA claim based on evidence that buried wastes impact the groundwater. In PMC, Inc. v. Sherwin-Williams Co. that court affirmed a finding of an imminent and substantial endangerment based on buried toxic wastes that "contain lead that is a constant danger to the groundwater, so that some cleaning up is necessary in the interest of health, which is what the statute requires." A district court in Illinois similarly found that a pathway leading from contaminated land to the Illinois River could satisfy the RCRA standard.
Courts denying relief under RCRA's endangerment provision often rely on plaintiff's failure to provide clear evidence that defendant either contributed the waste or that it poses any threat. The Ninth Circuit Court of Appeals recently affirmed a finding of no RCRA liability when plaintiff presented no evidence that any defendant had contributed phosphorus that reached a lake. In an unpublished case from a Utah chemical disposal facility, the Tenth Circuit refused to grant relief based on "a vague possibility of future harm, and pointed out plaintiff's inadequate allegation that "it is expected that such incidents will continue to occur." In another unpublished decision, the Fourth Circuit held that despite contamination remaining in the ground, plaintiffs could not establish a threat to drinking water when defendant had already installed a sophisticated drinking water filtration system.
RCRA's imminent and substantial endangerment provision provides courts with wide discretion in ordering remedies. It authorizes courts "to restrain any person who is contributing or has contributed" to the endangerment, to "order such person to take any other such action that may be necessary" or both. While a court may not award damages, it is authorized to award a prevailing or substantially prevailing party its costs of litigation, including reasonable attorney and expert witness fees.
The legislative history states that the endangerment provision "is intended to confer upon the courts the authority to eliminate any risks posed by toxic wastes." Courts are not constrained by cleanup levels acceptable to federal or state agencies. A Third Circuit appeals court took the Congressional mandate literally. It affirmed a district court order requiring defendant to excavate and remove all of the contaminated waste at a site on the Hackensack River. The site consists of 1.5 million tons of hexavalent chromium waste, fifteen to twenty feet deep on thirty-four acres. RCRA defendants are at the mercy of federal judges in fashioning the remedy. In view of the court's wide discretion and joint and several liability, defendants take significant risks in litigating endangerment claims.
Bars To RCRA Citizen Suits
Citizens have several potential hurdles to overcome in filing suit. Besides the standing requirement, citizens must wait 90 days after providing notice before filing suit. RCRA citizen suits may also be barred by various enforcement activities by U.S. EPA and the State. A citizen may not pursue a RCRA citizen suit if (a) U.S. EPA has commenced and is diligently prosecuting a CERCLA § 106 action or U.S. EPA or the State has filed its own RCRA endangerment action; (b) U.S. EPA or the State is engaging in its own removal action under CERCLA § 104; (c) U.S. EPA or the State has incurred costs under CERCLA § 104 to initiate a Remedial Investigation and Feasibility Study and is diligently proceeding with a remedial action; or (d) has obtained a court or administrative order (only as to the scope and duration of the order) under CERCLA § 106 or RCRA § 7003, pursuant to which a party is diligently proceeding with remedial action. For the most part, courts have interpreted provisions barring RCRA claims narrowly, and allowed actions to go forward. Nonetheless, if EPA or the State is addressing a site, a citizen plaintiff should carefully review the scope of such government action before filing suit.
Using RCRA's Endangerment Provision
In view of the relative ease of establishing liability, its powerful remedies, and attorney fees for prevailing plaintiffs, it is surprising that RCRA endangerment suits are not more common. One explanation is that the U.S. EPA still relies primarily on CERCLA, which arguably has an even easier burden of proof. In view of CERCLA, the federal agency may not feel the need to employ RCRA's endangerment provision. Both citizens and government agencies could also be dissuaded by RCRA's imminent and substantial language. A layman may assume a plaintiff's burden is much greater than judicial interpretations. It is also possible that citizens with limited funding may find RCRA overly burdensome. Even with its relaxed requirements, a plaintiff still must retain an expert to testify to an endangerment to health or the environment.
Citizens and governments can employ RCRA's endangerment provision in a wide variety of circumstances. For instance, any reasonably contaminated site bordering a river likely threatens health or the environment, as contaminants are probably moving via surface or groundwater in the direction of the river. RCRA offers a viable means to clean waterfront sites and water bodies themselves. Similarly, a neighbor concerned that contamination may be moving towards its property could file suit to assure that the problem is addressed before it becomes dangerous.
Owners of contaminated property can file RCRA endangerment actions to clean their properties in lieu of bearing all of the costs themselves. The Supreme Court in Cooper Industries, Inc.v. Aviall Services, Inc limited contribution actions under CERCLA. The Court held that a private party may pursue a claim for contribution under CERCLA § 113(f)(1) only during or after a civil action under CERCLA §§ 106 or 107(a). After the Court's ruling, an owner that voluntarily cleans its property bears a significant risk of incurring the entire remediation cost.
Instead of taking the risk of remediating the property and sustaining the full cleanup cost, an owner of contaminated property could file a RCRA endangerment action. The suit would seek an order requiring any past or present waste generator, disposer or transporter to clean the site. An owner that did not contribute to the contamination could employ RCRA to force others to pay the full costs of cleanup. Even assuming that the owner did contribute, it could employ RCRA to compel others to share in the cleanup. Unlike CERCLA, the owner can recover attorney fees, and need not incur any of its own response costs to initiate the RCRA suit. The sky appears to be the limit for RCRA endangerment actions. As plaintiffs learn more about the statute, particularly in jurisdictions that substantially restrict CERCLA, RCRA enforcement actions should dramatically increase.
1.Cooper Industries, Inc. v. Aviall Services, Inc., __ U.S. __, 125 S.Ct. 577 (2004).
2. Though EPA collected a record $4.8 billion in penalties in 2004, according to Eric Schaefer of the Environmental Integrity Project, the Justice Department concluded just 160 enforcement actions, the fewest in ten years. See ""EPA: Agency Touts Record Year for Enforcement-Related Penalties,"" Greenwire, November 16, 2004 (Environment and Energy Publishing, LLC)
3. 42 U.S.C. §§ 6901 et seq.
4. This article focuses on citizen enforcement of RCRA's endangerment cause of action, 42 U.S.C. § 6972(a)(1)(B). The language authorizing government suits is identical, 42 U.S.C. § 6973(a), and courts have ruled that both provisions ""are to be similarly interpreted."" Cox v. City of Dallas, 256 F.3d 281, 294 (5th Cir. 2001).
5. ""Person"" includes ""any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage or disposal facility,"" and includes ""the United States and any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution.""
6.United States v. Aceto Agriculture Chem. Corp., 872 F.2d 1373, 1383 (8th Cir. 1989); Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 972 (7th Cir. 2002).
7. RCRA authorizes injunctive relief for present and future conditions resulting from past acts. See e.g., KFC Western, Inc. v. Mehrig, 49 F.3d 518, 520 n.2 (9th Cir. 1995), rev'd on other grounds, 516 U.S. 482 (1996); Connecticut Coastal Fisherman's Ass'n v. Remington Arms Co. Inc., 989 F.2d 1305, 1316 (2d Cir. 1993); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 n.2 (1987); Cox v. City of Dallas, 256 F.3d 281, 298-99 (5th Cir. 2001).
8. The legislative suggests a broad reading of the statutory language. S.Rep. No. 96-172, at 5 (1979), reprinted in 1980 U.S.C.C.A.N. 5019, 5023.
9.Cox v. City of Dallas, 256 F.3d 281, 294 (5th Cir. 2001).
10.Id., 256 F.3d at 296-974 (5th Cir. 2001).
11.Aiello v. Brookhaven, 136 F.Supp. 81, 112-113 (E.D.N.Y. 2001).
12. See Interfaith Community Organization v. Honeywell, Inc., 263 F. Supp. 2d 796, 831, aff'd on other grds, 399 F.3d 248 (3d Cir. 2005 (no basis for finding present owners liable); cf., United States v. Price, 523 F.Supp.1055, 1073-74 (D.N.J. 1981), aff'd on other grds, 688 F.2d 204 (3d Cir. 1982) (passive indifference is adequate to hold current owner liable).
13.Id., 256 F.3d at 301, and cases cited therein.
14. 42 U.S.C. § 9601(14).
15.Association of Battery Recyclers v. U.S. EPA, 208 F.3d 1047 (D.C. Cir. 2000) held that the TCLP leach test cannot be used under RCRA to determine if manufactured gas plant (MGP) waste is hazardous. Though utilities have argued that MGP waste is not hazardous, it is solid waste subject to RCRA's endangerment provision.
16. 42 U.S.C. § 6903(27).
17.American Mining Congress v. EPA, 824 F.2d 1177, 1190 (D.C. Cir. 1987)
18.Safe Air v. Meyer, 373 F.3d 1035, 1043 (9th Cir. 2004)(grass residue of Kentucky bluegrass harvest used for future bluegrass production is not solid waste); American Mining Congress v. EPA, 907 F.2d 1179, 1186 (D.C. Cir. 1990); Association of Battery Recyclers v. EPA, 208 F.3d 1047, 1056 (D.C.Cir. 2000) (at least some secondary material is destined for reuse as part of a continuous industrial process, and is not abandoned or thrown away). The mere fact that the discarded materials have some value to a reclaimer does not prevent that material from being classified as solid waste. United States v. ILCO, 996 F.2d 1126 (11th Cir. 1993).
19. Pesticides being sprayed into the air with the design of reaching and killing mosquitoes and their larvae are not hazardous or solid wastes until after they have served their intended purpose. No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 149 (2d Cir. 2001).
20.Interfaith Community Organization v. Honeywell, Inc., 399 F.3d 248, 259 (3d Cir. 2005), citing United States v. Union Corp., 259 F.Supp.2d 356, 399-400 (E.D. Pa. 2003); Cox v. City of Dallas, 256 F.3d 281, 299-300 (5th Cir. 2001).
21.Id., citing United States v. Union Corp., 259 F.Supp.2d 356, 399-400 (E.D. Pa. 2003); see also Citizens For a Better Environment v. Caterpillar, Inc., 30 F.Supp.2d 1053, 1073 (C.D. Ill. 1998) (an exceedingly low risk of harm or only minor harm will not support a RCRA claim); cf. Foster v. United States, 922 F.Supp. 642, 661 (D.D.C. 1996)(potential for harm must be ""great').
22.KFC Western, Inc. v. Mehrig, 516 U.S. 482, 485 (1996).
23.See e.g., United States v. Valentine, 885 F. Supp. 621, 626 (D. Wy. 1994); United States v. E.I. DuPont de Nemours Co., 341 F.Supp. 2d 215, 247 (W.D.N.Y. 2004) (government suits under RCRA § 7003).
24.Id., Dague v. City of Burlington, 935 F.2d 1343, 1355-56 (2d Cir. 1991), rev'd on other grds, 505 U.S. 557 (1992). Interfaith Community Organization v. Honeywell, Inc., 399 F.3d 248, 259-60 (3d Cir. 2005).
25.Maine Peoples Alliance v. Holtrachem Mfg. Co., LLC, 211 F.Supp.2d 237, 247 (D. Me. 2002), citing Raymond K. Hoksie Real Estate Trust v. Excess Education Fnd., 81 F.Supp.2d 359, 366 (D.R.I. 2000).; see also Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1015 (11th Cir. 2004) (affirming RCRA liability and pointing out that materials on-site were explosive and that ""lead and heavy metals can affect a person's motor skills."").
26.Id., citing United States v. Reilly Tar & Chem. Co., 546 F.Supp. 1100, 1109 (D.Minn. 1982).
27.Interfaith Community Organization v. Honeywell, Inc., 399 F.3d 248, 259-61 (3d Cir. 2005) (court rejects lower court's standard that there must be a potential population at risk, and the contaminant is present at levels above that considered acceptable by state). The Interfaith court points out that defendant's experts in Price v. U.S. Navy, 818 F.Supp. 1323 (S.D. Cal. 1992), aff'd 39 F.3d 1011 (9th Cir. 1994), articulated a higher standard, but that such standard has no basis. This heightened standard was also adopted in Kara Holding Corp. v. Getty Petroleum Mfg., Inc., 2004 U.S. Dist. LEXIS 15584 (S.D.N.Y. August 13, 2004), citing the lower court's decision in Interfaith, which the Third Circuit rejected. 399 F.3d at 259-61 (3d Cir. 2005).
28. 151 F.3d 610, 618 (7th Cir. 1998); see also Green Hills (USA) LLC v. Streit, Inc., 361 F.Supp.2d 81, 86 (E.D.N.Y. 2003) (defendant held liable for leaking heating oil which had discharged substances on property or groundwater).
29.Citizens For a Better Environment v. Caterpillar, Inc., 30 F.Supp.2d 1053, 1073 (C.D. Ill. 1998) (""[B]ased on the undisputed facts that there were strong petroleum odors in the soil borings taken from the…levee site and there are pathways from the levee site to the Illinois River, this Court believes that a reasonable trier of fact could find that the levee site poses more than just an exceedingly low risk to human health and the environment."").
30.Steilacoom Lake Improvement Club, Inc. v. Washington, 2005 U.S. App. LEXIS 13703 (9th Cir. July 6, 2005).
31.Chemical Weapons Working Group, Inc. v. United States DOD, 2003 U.S. App. LEXIS 5359 (10th Cir., March 18, 2003)
32 Leister v. Black and Decker, 1997 U.S. App. LEXIS 16961 (4th Cir. 1997). The Fourth Circuit distinguished Leister in a 1998 ruling under the Safe Drinking Water Act, 42 U.S.C. 300i(a), affirming a finding for EPA based on evidence that defendant was contributing to drinking water contamination. Trinity American Corp. v. EPA, 150 F.3d 389, 394-95 (4th Cir. 1998).
33. 42 U.S.C. § 6972(a)(1)(B); Avondale Fed. Sav. Bank v. Amoco Oil Co., 170 F.3d 692, 694 (7th Cir. 1999) (RCRA offers citizen a choice of two remedies: a mandatory or prohibitory injunction).
34.KFC Western, Inc. v. Mehrig, 516 U.S. 482, 485 (1996).
35. 42 U.S.C. § 6972(e)(B).
36. S.Rep. No. 98-284, 98th Cong., 1st Sess. at 59.
37. The Interfaith court points out that legislative history of RCRA states that ""citizens need not exhaust or rely upon other resources or remedies before seeking relief under these amendments."" 399 F.3d 248, 267 (3d Cir. 2005), citing S.Rep. No. 98-284, 98th Cong., 1st Sess. at 57 (1983); see also Spillane v. Commonwealth Edison Co., 291 F.Supp.2d 728, 736 (N.D. Ill. 2003)(participation in state cleanup program does not automatically remove ""substantial and imminent endangerment."")
38.Interfaith Community Organization v. Honeywell, Inc., 399 F.3d 248 (3d Cir. 2005).
39.Cox v. City of Dallas, 256 F.3d 281, 301 (5th Cir. 2001) and cases cited therein.
40. This article does not address standing, which requires a citizen to show injury-in-fact, causation and redressability. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103-04 (1998).
41. Section 7002(b)(2)(B) of RCRA, 42 U.S.C. § 6972(b)(2)(B) requires a citizen to give 90-days notice of the endangerment to the defendant, the State and EPA.
42. CERCLA § 106, 42 U.S.C. § 9606, among other things, authorizes the EPA to file suit to force a responsible party to remediate hazardous substances.
43. CERCLA § 104, 42 U.S.C. § 9604, among other things, authorizes the EPA to take its own action to remediate hazardous substances.
44. RCRA § 7002(b)(2)(B), (C), 42 U.S.C. §§ 6972(b)(2)(B),(C)
45.Organic Chemical Site PRP Group v. Total Petroleum, Inc., 58 F.Supp.2d 755, 764-64 (W.D. Mich. 1999) (court allowed a RCRA action to proceed when a prior AOC addressed groundwater exclusively and the RCRA citizen action addressed both groundwater and soil contamination); A-C Reorganization Trust v. E.I. DuPont De Demours & Co., 968 F. Supp. 423, 431 (E.D. Wis. 1997) (because the AOC's ""scope may not encompass Plaintiffs' claim of imminent and substantial danger to groundwater and Lake Michigan from arsenic and other wastes, the RCRA claim is not barred…"" The court added that ""[b]ecause the RCRA citizen suit provision is meant to protect the public interest, the more prudent course is to allow the RCRA claim as long as it may better afford protection of the public health and the environment than the EPA-initiated action will."" Id.); Coburn v. Sun Chemical Corp., 1998 U.S. Dist. LEXIS 12548, No. 88-0120 (E.D. Pa., November 9, 1988) (AOC relates to water supply, while RCRA suit pertains to surface cleanup); Keystone Coke Co. v. Pasquale, 1998 U.S. Dist LEXIS 9389 *6, No. 97-6074 (E.D. Pa. June 25, 1998) (cited by defendants), quoting Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498, 1509 (E.D. Wis. 1992 (""When meaningfully read in its entirety [subsection (b)(2)(B)(iii)] requires both that the EPA has initiated an RI/FS and is diligently proceeding with some remedial action beyond the [RI/FS]'.""); Davies v. National Cooperative Refinery Ass'n, 1996 U.S. Dist. LEXIS 10122 *14 No. 96-1124 (D. Kan., July 12, 1996)(stating that equivalent of 42 U.S.C § 6972(b)(2)(B)(iii), as it applies to state, ""does not bar a citizen suit whenever a state agency is 'engaged' – actively or otherwise – at a site.""); but see McGregor v. Industrial Excess Landfill, Inc., 709 F.Supp. 1401, 1408 (N.D. Ohio 1987) (payment by EPA for RI/FS precludes citizen action).
46.Cooper Industries, Inc. v. Aviall Services, Inc., __ U.S. __, 125 S.Ct. 577 (2004).
47. 42 U.S.C. § 9613(f)(1).
48. CERCLA holds current owners, with few exceptions, liable under CERCLA. See e.g, 42 U.S.C. § 9607(a),b). At least three lower courts have held that liable parties precluded from suing for contribution under the Supreme Court's Aviall decision, are also precluded from recovering their cleanup costs via direct actions under Section 107 of CERCLA, 42 U.S.C. § 9607. City of Waukesha v. Viacom Int'l, 363 F.Supp.3d 1025 (E.D. Wi., 2005); Mercury Mall Assoc. v. Nick's Mkt., 386 F.Supp. 2d 513 (E.D. Va. 2005); Elementis Chems., Inc. v. TH Agric. And Nutrition, LLC, 373 F.Supp 2d 357 (S.D.N.Y. 2005). At least two courts disagree. These district courts have ruled that liable parties prevented from contribution under 42 U.S.C. § 9613(f)(1) may nonetheless recover their costs directly under CERCLA Section 107. Metropolitan Water Reclamation District v. Lake River Corp., 365 F.Supp.2d 913 (N.D. Ill. 2005); Vine St., LLC v. Keeling, 362 F.Supp.2d 759 (E.D. Tx. 2005)."