April 09, 2019 Practice Points

RCRA Citizen Suits: You Must First Provide Notice

What can you do if you have a contaminated piece of property and you would like to have it cleaned up?

By Matthew P. Coglianese

What can you do if you have a contaminated piece of property and you would like to have it cleaned up? And, further, you did not cause or contribute to the contamination. One approach would be to use the citizen-suit provision of the Resource Conservation and Recovery Act (RCRA) 42 U.S. Code § 6972 (a)(1)(B), combined with traditional common-law remedies such as trespass, nuisance, etc. and state law remedies that may be available.

Fundamentally, the RCRA provides that any person may commence a civil action on his or her own behalf

[A]gainst any person . . . and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment[.]

The key is that the person must have contributed to contamination that may present an imminent and substantial endangerment. See Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 972 (7th Cir. 2002). Costs, including attorney fees, as well as civil penalties, are available to one who prevails on a RCRA citizen-suit claim. These are pretty good reasons to consider a RCRA citizen suit in the right circumstances. Another advantage of an RCRA suit is that there is no explicit statute of limitations. Most courts have held that means that there is no statute limiting the time to bring a RCRA citizens suit, although a few courts have applied a five-year limitations period.

Hence, an RCRA citizen suit carries a punch. But, there are certain procedural requirements that must be followed to maintain an action.

For example, there cannot already be an ongoing governmental cleanup of the site as the relief sought is injunctive, unlike CERCLA actions to recover cleanup costs. That is, the purpose of the RCRA citizen-suit provision is to have those who contributed to the contamination clean up the site.

Also, there is no right to a jury trial of the RCRA citizen-suit claims, but a jury can be requested for supplemental and other claims. And, jurisdiction is exclusively in federal court:

Any action under paragraph (a)(1) . . . shall be brought in the district court for the district in which the alleged violation occurred or the alleged endangerment may occur. Any action brought under paragraph (a)(2) of this subsection may be brought in the district court for the district in which the alleged violation occurred or in the District Court of the District of Columbia.

But, perhaps the biggest hurdle is that potential citizen plaintiffs (under section 107(a)(1)(B)) must first give the potential defendant 90 days’ notice. The purpose of the notice provision is to give the defendant the opportunity to clean up the site to regulatory standards prior to filing suit. The U.S. Supreme Court explained that the notice-and-delay provision serves two congressional purposes: (1) Notice allows government agencies to take the lead role in enforcing environmental regulations; and (2) notice gives the alleged violator an opportunity to voluntarily comply with RCRA regulations. Hallstrom v. Tillamook County, 493 U.S. 20, 29 (1990). See, also, 40 C.F.R. Part 254 for the specifics of the notice requirements such as content, service of copies on specified public officials, etc. If timely and proper notice is not given, the case will be dismissed.

On a motion to dismiss, the defendant will, among other things, usually argue that the notice was not sufficient, or specific enough. However, although enough specificity is required so that the potential defendant understands the contamination and can act to address it, the notice does not have to amount to a scientific paper or a doctoral dissertation.

Recently, we represented the plaintiff in an RCRA citizen suit against a municipality. At issue was incinerator ash from historical municipal trash operations. While, in our notice letter, we described the incinerator process in detail and including the most recent data from investigations by the City over the last five years, the City still claimed that our RCRA notice was deficient and that the action should be dismissed. The court did not agree, stating:

According to the City, Plaintiff’s letter of September 7, 2017 does not comply with the RCRA’s pre-suit notice requirement because it does not refer to “fly ash.” (Id. 4 (footnote call number omitted)). The City explains fly ash is ash arising from garbage or trash laden with toxic heavy metals; as distinguished from “bottom ash” which goes to the bottom of an incinerator and was allegedly placed on Plaintiff’s property by the City. (See id. 4 n.1).
As noted by Plaintiff, the City’s reliance on cases stating service of the pre-suit notice is a jurisdictional prerequisite to the filing of a claim under the RCRA is misplaced as a basis for requesting dismissal. (See Resp. 4). Plaintiff did in fact serve a timely pre-suit notice, as evidenced by the September 7, 2017 letter. (See id.). And that pre-suit notice is sufficient, as it relies on the City’s own environmental assessment and test reports, including public records of the City, which concern tests and findings of the City regarding Plaintiff’s very property. (See id. 5). As such, the September 7, 2017 letter satisfies the pre-suit notice requirement of the RCRA. See, e.g., Cmty. Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir. 2002) (“Although the notice must be sufficiently adequate so that the recipients can identify the basis for the complaint, the citizen is not required to list every specific aspect or detail of every alleged violation. Nor is the citizen required to describe every ramification of a violation.” (internal quotation marks and citation omitted)); Mejdreck v. Lockformer Co., No. 01- C-6107, 2002 WL 1838141, at *8 (N.D. Ill. Aug. 12, 2002) (“Plaintiffs clearly complained Defendants allegedly had spilled TCE, among other chemicals, out of the aboveground storage tank and into the ground, contaminating the soil, groundwater, and wells in the area. Plaintiffs’ detailed description of the alleged violations was sufficient enough that Honeywell could have come into compliance.” (citation omitted)).

Case 1:17-cv-24680-CMA Document 14 Entered on FLSD Docket 03/02/2018 Page 4 of 5; CASE NO. 17-24680-CIV-ALTONAGA/Goodman.

So, the bottom line is that an RCRA citizen suit notice cannot be generic, but does need to be specific enough for the defendant to understand the contamination at issue and address it, from both legal and technical perspectives. Many RCRA citizen-suit notices, particularly from non-governmental organizations, that I’ve reviewed have gone overboard with detail. While the notice does not have to be infused with minute detail, include every data point, and attach every single study performed on the site and the waste, it must be specific enough for the respondent to actually respond.

Matthew P. Coglianese is a partner at Rasco Klock Perez & Nieto in Coral Gables, Florida.

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