CITIZEN SUIT WATCH: Second Circuit Demands Listing of Specific Contaminants to Satisfy Notice Requirements for RCRA Citizen Suits
In mid-July 2011, the Second Circuit upheld a district court’s dismissal of a citizen suit alleging violations of the Resource Conservation and Recovery Act (RCRA) because the Plaintiffs failed to identify the precise contaminants that supported their claims for RCRA liability and therefore did not comply with RCRA’s citizen suit notice provisions. In Brod v. Omya, Inc., Plaintiffs brought an action against Omya, the operator of a mineral processing facility, alleging that the company created an “imminent and substantial endangerment” and engaged in open dumping in violation of RCRA. The federal district court in Vermont had originally granted summary judgment holding Omya liable, but ultimately vacated that judgment after Defendants successfully argued that Plaintiffs’ notice had been insufficient. The Second Circuit affirmed.
Background and District Court Proceedings
Omya operates a calcium carbonate mineral processing facility in Florence, Vermont, which generates tailings as a by-product of the mineral purification process. Omya disposes of the tailings into Tailings Management Areas (TMA), unlined quarries that allow seepage of constituents from the tailings into groundwater. Plaintiffs argued that this seepage was affecting public water supply wells, streams, ponds, and wetlands.
In November 2004, Plaintiffs served Omya and federal and state regulators with a Notice of Intent (NOI) to sue, as required by RCRA. Plaintiffs alleged that Omya’s disposal practices constituted open dumping and created an “imminent and substantial endangerment” in violation of RCRA. Plaintiffs specifically named twenty-one chemicals in the NOI as contributing to the RCRA violation and claimed additionally that Omya’s wastes were “contaminated with numerous chemicals, including hazardous chemicals listed under Subchapter III of RCRA, as well as pesticides registered under the Federal Insecticide, Fungicide, and Rodenticide Act.”
Several months after Plaintiffs filed suit, Omya -- seeking a solid waste disposal certification from the State of Vermont -- hired consultants to study the effects of its disposal practices on human health and the environment.
While the study of disposal practices was ongoing, Plaintiffs obtained groundwater samples from under the Omya facility and from nearby properties that showed arsenic at levels of 8-12 parts per billion (ppb). Based on these samples, Plaintiffs moved for summary judgment, alleging that Omya violated RCRA’s prohibitions on open dumping by contaminating underground drinking water sources in excess of the arsenic threshold of 10 ppb set by the Safe Drinking Water Act (SDWA).
In addition, the final report of Omya’s disposal practices showed evidence of aminoethylethanolamine (AEEA) in off-site spring water that was traceable to Omya’s facility. The report also indicated that drinking water wells showed no traces of contaminants. In response to this information, Plaintiffs supplemented their summary judgment motion by arguing that “the presence of AEEA in the tailings was alone sufficient to pose an imminent and substantial endangerment to human health.”
The district court rejected Plaintiffs’ open dumping claim, agreeing with Defendants that the relevant standards for contaminants derive from Appendix I of RCRA, which sets the arsenic limit at 50 ppb, and not from the SDWA. Thus, arsenic at 8-12 ppb does not violate RCRA. However, the court held that Omya was liable for imminent and substantial endangerment for the release of AEEA into spring water, relying on the Second Circuit’s expansive holding in Dague v. City of Burlington that courts may “grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.” To determine the appropriate equitable relief, the court scheduled a remedy hearing.
In the interim, Omya filed a motion to dismiss, arguing that Plaintiffs had failed to comply with RCRA’s citizen suit notice provisions. AEEA had not been included in the list of contaminants in the original NOI, and Plaintiffs provided no supplemental NOI. Additionally, Omya moved to vacate the court’s judgment on endangerment liability because subsequent testing showed that there was no AEEA contamination off-site. The district court granted both motions, and Plaintiffs appealed.
The Second Circuit Proceedings
On appeal, Plaintiffs argued, among other things, that the district court erred by (1) granting Omya’s motion to dismiss, (2) misapplying the “imminent and substantial endangerment” legal standard, and (3) finding that Omya did not violate the open dumping provisions. Omya argued that the list of twenty-one contaminants in Plaintiffs’ NOI did not include AEEA or arsenic. And though the NOI made more general allegations about “pesticides and Subchapter III hazardous chemicals,” AEEA is neither of those.
RCRA requires that a Plaintiff provide notice of a violation 90 days prior to filing a citizen suit alleging imminent and substantial endangerment, and 60 days for an open dumping claim. The Second Circuit began its analysis by noting its previous holding, consistent with Supreme Court precedent, that notice periods require strict compliance to satisfy Congress’s intent to “encourag[e] citizen enforcement of environmental regulations and avoid burdening the federal courts with excessive numbers of citizen suits.” Ideally, the notice period would provide an opportunity either for the government to bring an enforcement action or for the alleged violator to come into compliance.
Addressing the necessary content of an NOI, the court acknowledged that the statute itself does not describe the required content, but EPA regulations require that notice include “sufficient information to permit the recipient to identify the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated” and “the activity alleged to constitute the violation.” In Dague, the Court held that the content of an NOI must give “the appropriate governmental agencies an opportunity to act and the alleged violator an opportunity to comply.” But that decision did not specifically interpret the phrase “sufficient information.”
As to what constitutes “sufficient information,” the court turned to its precedent under the Clean Water Act (CWA). The analogous CWA regulation also requires “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, [and] the activity alleged to constitute a violation.” In Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, the court held that a CWA NOI “must identify with reasonable specificity each pollutant that the Defendant is alleged to have discharged unlawfully.”
In that case, Plaintiffs sued New York City for discharging pollutants into a creek. Plaintiffs’ NOI referred only to the discharge of pollutants “in the form of Total Suspended Solids and Settleable Solids,” but their complaint included allegations of the additional discharges of heat and turbidity. The court held that while the term “suspended solids” had given adequate notice of both suspended solids and turbidity, the NOI did not give adequate notice of the thermal discharge claims. Because heat and solid wastes are distinct pollutants under the CWA, Plaintiffs’ NOI did not sufficiently “differentiate pollutants from nonpollutants and one pollutant from another.” Thus, Plaintiffs’ NOI did not provide Defendants adequate notice of the claims.
In Brod, the court noted that its Catskill Mountains holding was not limited to the CWA and that the policy is equally applicable to RCRA’s notice provisions: “Specific knowledge of the pollutants allegedly discharged unlawfully makes it easier for the defendants to promptly rectify the problem.” In fact, the court had previously referenced the Catskill Mountains holding in a RCRA citizen suit action, where it held that an NOI describing all of the specific contaminants at issue was sufficient.
Thus in Brod, because none of the contaminants listed in the NOI could be the basis of liability once Omya’s report showed no contamination except from AEEA, Plaintiffs failed to give adequate notice. The court stated that “[t]he activity alleged to constitute the [endangerment] is not simply the dumping of waste into unlined pits, but rather the dumping of waste contaminated with AEEA into unlined pits.” Similarly, “the activity alleged to constitute [open dumping] is the dumping of waste contaminated with arsenic into unlined pits.”
More broadly, 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.”
The court emphasized that nothing prohibited Plaintiffs from giving notice of either the AEEA or the arsenic violations when they became aware of the contaminants. Therefore, the court upheld the dismissal of the case and did not need to reach the other claims.
As a practical matter, the Second Circuit’s holding tightens the notice requirements in RCRA citizen suits by increasing the level of specificity a Plaintiff must provide in an NOI. The court acknowledged that its holding could prevent some Plaintiffs from bringing citizen suits due to inability to obtain the requisite information, explaining that the result was a necessary consequence of EPA’s regulations. The need for a supplemental NOI when fact discovery or other investigation reveals contaminants not included in the original notice provides Defendants with additional time to remedy any violations or negotiate a resolution outside the need for further litigation. The decision could also, however, turn NOIs into catalog listings of every possible contaminant of concern, thus diluting the utility and purpose of an NOI in the first instance.
 Brod v. Omya, Inc., No. 09-4551-CV, 2011 WL 2750916 (2d Cir. July 18, 2011).
 See 40 C.F.R. § 257, App. I (2011).
 935 F.2d 1343, 1355 (2d Cir. 1991), rev’d on other grounds, 505 U.S. 557 (1992).
 42 U.S.C. § 6972(b)(2)(A) (2006).
 See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 26 (1989); Dague, 935 F.2d at 1351.
 40 C.F.R. § 254.3(a)(2011).
 40 C.F.R. § 135.3(a) (2011).
 273 F.3d 481, 488 (2d Cir. 2001),
 See Bldg. & Const. Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 158 (2d Cir. 2006).
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