RCRA imminent & hazardous endangerment notice must be specific, notes Second Circuit

RCRA imminent & hazardous endangerment notice must be specific, notes Second Circuit

A RCRA notice is mandatory, as noted by the U.S. Supreme Court in Hallstrom v. Tillamook County, 493 U.S. 20, 26 (1989).  The purpose of the notice is to a) inform public agencies of the alleged problem so that they can ascertain if they wish to take action, and b) provide the alleged violator with sufficient information to permit him/her/it to take corrective action.

(Lexis.com subscribers can access the Lexis enhanced version of the Hallstrom v. Tillamook County, 493 U.S. 20, 26 (1989) decision with summary, headnotes, and Shepard’s. Non subscribers can access the free unenhanced version of the Hallstrom v. Tillamook County, 493 U.S. 20, 26 (1989) decision available from lexisONE Free Case law.)

In Brod et al v. Omya, Inc., 2011 U.S. App. LEXIS 14652 (2nd Cir.: 7/18/11), citizens were concerned that the waste of a local industry posed an imminent & substantial endangerment.  The complaint alleged that Omya was creating an imminent and substantial endangerment to human health and the environment by permitting its waste to seep into the groundwater, thereby contaminating hydrologically-connected water sources with AEEA.  The complaint also claimed that Omya was operating an unlawful open dump because Omya's solid waste allegedly contained an amount of arsenic above the permitted level established by EPA.

(Lexis.com subscribers can access the Lexis enhanced version of the Brod et al v. Omya, Inc., 2011 U.S. App. LEXIS 14652 (2nd Cir.: 7/18/11) decision with summary, headnotes, and Shepard’s. Non subscribers can access the free unenhanced version of the Brod et al v. Omya, Inc., 2011 U.S. App. LEXIS 14652 (2nd Cir.: 7/18/11) decision available from lexisONE Free Case law.)

Upon the granting of defendant's MSJ by the District Court (finding the waste was not a "serious" endangerment and that the notice was defective), the issue came before the Second Circuit.  In looking at what is "sufficient information" in the Notice, the Court of Appeals looked at comparable requirements under the CWA. 

After the complaint was filed, an actual assessment of groundwater impacts was undertaken and some problems were identified.  Unfortunately for plaintiffs, the substances that were apparently causing a potential problem were not noted in the RCRA Notice (plaintiffs listed 21 substances, but this list did not include those that ultimately were found to be a problem).  The Court held that "when an alleged violation of RCRA depends on the presence or release of a particular contaminant, the NOI must identify the contaminant alleged to be the basis of the violation with sufficient specificity to permit the recipient to identify the specific legal provision alleged to be violated and the activity alleged to constitute the violation."  Further, the notice did not specify the relevant regulation that covered the open-dump allegation. 

Thus, the Court upheld the dismissal of the complaint.

What this opinion makes clear is that a plaintiff will likely need truly expert assistance before sending a notice in order to present the level of detail which the Court has here held is required.

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