Resource Conservation and Recovery Act Citizen Suit Elements And

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Resource Conservation and Recovery Act Citizen Suit Elements And Defenses American Conference Institute Chemical Products Liability & Environmental Litigation April 28 – 30, 2014

KARL S. BOURDEAU, ESQ. BEVERIDGE & DIAMOND, P.C. 1350 I STREET, NW, SUITE 700 WASHINGTON, DC 20005 TEL: (202) 789-6019 [email protected] WWW.BDLAW.COM

RCRA CITIZEN SUIT ELEMENTS AND DEFENSES Karl S. Bourdeau Beveridge & Diamond, P.C. Washington, DC [email protected]

This outline provides an overview of the basic elements of a citizen suit under the federal Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. The outline also highlights the primary RCRA defenses to such suits. Readers should be aware that RCRA citizen suits are common and that there is considerable ongoing development of case law, not all of which as of the date of this outline is addressed below. I. RCRA Citizen Suit Elements A. Three types of RCRA citizen suits are provided for in 42 U.S.C. § 6972. i. Regulatory violation(s). 42 U.S.C. § 6972(a)(1)(A). 1. Against “any person” – “person” defined broadly in statute as including an “individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body and shall include each department, agency, and instrumentality of the United States.”1 2. In violation of any permit, standard, regulation, condition, requirement, prohibition, or order [effective pursuant to RCRA]. ii. Contribution to an actual or threatened “imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). 1. Against “any person” – (broadly defined by statute, as noted above), including, but not limited to: a. Past or present generator b. Past or present transporter c. Past or present owner or operator of a treatment, storage, or disposal facility 2. Who has contributed or who is contributing to – a. “Contributing” is not defined in the statute. Courts have broadly interpreted “contributing to” to mean “to have a share in any act or effect.”2 b. The majority of courts have held that passive conduct, such as merely failing to remediate and prevent migration, fails to satisfy the “contributing to” requirement.3

1 42 U.S.C § 6903(15). 2 United States v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373, 1384 (8th Cir. 1989) (citing Webster’s Third New International Dictionary 496 (1961)). See, e.g., Sycamore Indus. Park Assocs. v. Ericsson, Inc., 546 F.3d 847, 854 (7th Cir. 2008) (stating RCRA liability requires “active involvement in handling or storing materials,” and “to act as a determining factor”); Cox v. City of Dallas, 256 F.3d 281, 295 (5th Cir. 2001) (“have a part or share in producing an effect”). 3 See, e.g., Delaney v. Town of Carmel, 55 F. Supp. 2d 237, 256 (S.D.N.Y. 1999) (“The term [contributed to] has been universally held to infer something more than mere ownership of a site; some level of causation between the contamination and the party to be held liable must be established.”); SPS Ltd. Partnership, LLLP v. Severstal Sparrows Point, LLC, 808 F. Supp. 2d 794, 807 (D. Md. 2011) (dismissing RCRA count based on the fact defendant was passive subsequent owner who acquired site after disposal at issue ceased).

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3. Handling, storage, treatment, transportation or disposal 4. Of any solid or hazardous waste – as both are defined broadly by RCRA and not limited by federal or state regulatory definitions: a. “solid waste” is defined in RCRA as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material4, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act, as amended (86 Stat. 880) [33 USCS § 1342], or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended.”5 b. “hazardous waste” is defined in RCRA as “a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may – (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.”6 5. Which may present an imminent and substantial endangerment to health or the environment – a. “Imminent” – courts have ruled that this means “only that the harm is of a kind that poses a near-term threat; there is no corollary requirement that the harm necessarily will occur or that the actual damage will manifest itself immediately.”7 b. Substantial – “substantial” implies serious harm.8 c. Endangerment to health or the environment – “may” and “endanger” do not require actual harm, but rather, only potential harm.9 iii. Against Administrator for alleged failure to perform non-discretionary act or duty.10 B. Key statutory and regulatory provisions vary depending upon type of suit brought

4 Courts have held that in some instances releases resulting from normal wear and tear are not “discarded material[s]” within RCRA’s definition of solid waste. See Ecological Rights Foundation v. Pac. Gas and Elec. Co., 713 F.3d 502 (9th Cir. 2013) (holding wood preservative that escapes from treated utility poles through normal wear and tear while poles are in use is not a RCRA solid waste). 5 42 U.S.C § 6903(27). 6 Id. § 6903(5). 7 Me. People’s Alliance v. Mallinckrodt, 471 F. 3d 277, 288 (1st Cir. 2006), cert. denied, 128 S. Ct. 93 (2007). 8 See id. 9 See id. 10 42 U.S.C. § 6972(a)(2). See, e.g., Doe v. Browner, 902 F. Supp. 1240 (D. Nev. 1995) (suit against EPA administrator for failure to enforce RCRA with respect to operations at Air Force base); Appalachian Voices v. McCarthy, No. 12-0523, 2013 U.S. Dist. LEXIS 154505 (D.D.C. 2013) (finding review and revision of coal ash regulations under RCRA Subtitle D a non-discretionary duty, and ordering EPA to complete same)

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II. Defenses Arising From Notice Failures and Deficiencies A. Prior to filing RCRA citizen suit, notice must be given to the U.S. Environmental Protection Agency (“EPA”) Administrator, the State in which the alleged violation or endangerment occurs, and the defendant. Notice requirement reflects Congressional preference for government to take lead enforcement role, not citizens.11 B. 60-day notice required for suits brought under § 6972(a)(1)(A) (violation of specific RCRA requirement), and 90-day notice required for suits brought under § 6972(a)(1)(B) (imminent and substantial endangerment).12 RCRA provides an exception for citizen suits alleging violations of Subtitle C hazardous waste management provisions, which can be filed immediately after providing notice.13 C. Courts divided as to whether notice provisions are “jurisdictional;” 14 distinction is that jurisdictional issues may be subject to discovery on a motion to dismiss, and there may be other procedural advantages, e.g. as to when the issue may be raised15; however, notice deficiencies generally mandate dismissal regardless of whether they are deemed jurisdictional. D. For citizen suits alleging a violation of a RCRA standard (§ 6972(a)(1)(A)) or failure of EPA to act (§ 6972(a)(2)), EPA regulations govern what the notice must contain. See 40 C.F.R. § 254.3.16 The majority of courts find this regulation inapplicable to “imminent endangerment” claims brought under § 6972(a)(1)(b); however, some courts have applied its requirements to dismiss RCRA imminent endangerment claims.17

11 See Hallstrom v. Tillamook County, 493 U.S. 20, 29 (1989) (Congress enacted the notice provisions “to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits.”). 12 42 U.S.C. § 6972(b)(1)(A) (notice requirements for citizen suits brought under § 6972(a)(1)(A) for violation of specific RCRA standard); 42 U.S.C. § 6972(b)(2)(A) (notice requirement for citizen suits brought under § 6972(a)(1)(B) (imminent and substantial endangerment)). 13 Id. §§ 6972(b)(1)(A), (b)(2)(A) (containing notice exception). To take advantage of the notice timing exception, the complaint and the notice must do more than provide general allegations of hazardous waste disposal, the action must allege specifics regarding violations of RCRA Subtitle C or its regulations. Bldg. and Constr. Trades Council v. Downtown Dev. Inc., 448 F.3d 138, 155-57 (2d Cir. 2006). Some courts have held that where a complaint contains both allegations of Subtitle C violations, which are exempted from the waiting period after notice, and other RCRA allegations which would ordinarily require the 60 or 90 day waiting period before filing suit, the complaint may be filed immediately after providing notice where the violations are “closely related” and “all arose from the operation of a single facility and are based on the same core of interrelated facts.” Dague v. City of Burlington, 935 F.2d 1343, 1352 (2d Cir. 1991), rev’d in part on other grounds, City of Burlington v. Dague, 505 U.S. 557, 560 (1992). 14 See, e.g., Beazer East, Inc. v. United States Navy, 1997 U.S. App. LEXIS 6746 (4th Cir. Apr. 11, 1997) (holding court lacked subject matter jurisdiction to hear RCRA claim without proper notice); but compare Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011) (stating that RCRA notice and delay requirements are “clearly” not jurisdictional). 15 EQT Gathering, LLC v. A Tract of Prop. Situated in Knott County, 2012 U.S. Dist. LEXIS 132840 (E.D. Ky. Sept. 18, 2012) (“The Court may consider evidence to resolve jurisdictional disputes under Rule 12(b)(1) but cannot consider evidence under Rule 12(b)(6).”); Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 610 (D. Md. 2011) (“an important distinction must be drawn between the evidence a court may consider in reviewing a Rule 12(b)(1) motion to dismiss, as opposed to a Rule 12(b)(6) motion to dismiss;” under Rule 12(b)(1) courts may consider evidence outside the pleadings and no presumptive truthfulness need attach to the allegations in the complaint). 16 The notice “shall include sufficient information to permit the recipient to identify the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the date or dates of the violation, and the full name, address, and telephone number of the person giving notice.” 40 C.F.R. §254.3 17 See, e.g., N. Cal. River Watch v. Humboldt Petroleum, Inc., 2000 U.S. Dist. LEXIS 15939 (N.D. Cal. Oct. 30, 2000) (A subsection (a)(1)(B) imminent endangerment claim requires no showing of a violation of a permit, standard, regulation, etc., and therefore the notice requirements of 40 C.F.R. § 254.3 are “irrelevant” to such a claim); but compare Helter v. AK Steel Corp., 1997 U.S. Dist. LEXIS 9852 (S.D. Ohio Mar. 31, 1997) (stating without discussion that the form of the notice required for imminent endangerment suits brought under § 6972(a)(1)(b) is governed by 40 C.F.R. § 254.3) and Brod v. Omya, Inc., 653 F.3d 156, 168 (2d Cir. 2011) (applying specificity required by 40 C.F.R. § 254.3 to affirm dismissal of citizen suit where notice only identified waste practices and failed to identify specific contaminants).

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i. Dismissal for lack of notice is without prejudice, and plaintiffs may re-file after compliance with notice provisions. ii. However, re-filing may result in procedural issues in an ongoing case, depending on timing.18 III. Defenses Based on Separate Government Action Under RCRA or the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), and the Doctrine of Primary Jurisdiction and Abstention A. Certain RCRA suits barred where government is “diligently prosecuting” an “action.” 42 U.S.C. § 6972(b)(1)(B); § 6972(b)(2)(B)(i); § 6972(b)(2)(C)(i). i. RCRA suits brought under § 6972(a)(1)(A) (alleging violation of RCRA standard) are prohibited where state or EPA “has commenced” and is “diligently prosecuting” a civil or criminal action to require compliance. 42 U.S.C. § 6972(b)(1)(B) (actions prohibited). ii. RCRA suits brought under § 6972(a)(1)(B) alleging an imminent endangerment are prohibited if: 1. EPA “has commenced” and is “diligently prosecuting” a RCRA § 697319 suit or an action under CERCLA § 10620 (42 U.S.C. § 6972(b)(2)(B)(i)); or 2. a state “has commenced” and is “diligently prosecuting” a RCRA citizen suit under § 6972(a)(1)(B) (imminent endangerment) (42 U.S.C. § 6972(b)(2)(C)(i)). 3. “has commenced” has been interpreted to mean the suit has been filed. Courts have ruled that a RCRA citizen suit filed first can continue and will not be barred by this section even if the government later files suit.21 iii. Diligent prosecution bar of § 6972(b)(1)(B), which bars suits where EPA has filed suit “in court,” has been ruled to require a lawsuit filed in court. The majority of courts find that the “diligent prosecution” bar under §§ 6972 (b)(2)(B)(i) or (b)(2)(C)(i) (endangerment provisions) also requires actual filing of suit in court despite absence of the phrase “in court” from these provisions; minority of courts have left room for an argument that administrative actions may suffice to bar citizen suits, in some circumstances.22

18 See Hallstrom, 493 U.S. at 31-33 (after dismissal, plaintiffs may re-file suit after compliance with RCRA’s notice provisions). 19 This section authorizes EPA to bring suit to restrain imminent and substantial endangerments. 42 U.S.C. § 6973. 20 This section authorizes EPA to file an abatement action in federal court to compel potentially responsible parties (“PRPs”) to clean up a site, or to issue unilateral administrative orders requiring cleanup, which EPA then enforces in federal court if necessary. Id. § 9606(a). 21 See Adkins, 644 F.3d at 493. 22 See 42 U.S.C. § 6972(b)(1)(B) (action “in court” by EPA or state to require compliance with RCRA standard); § 6972(b)(2)(B)(i) (EPA “action” under RCRA § 6973 or CERCLA § 9606); § 6972(b)(2)(C)(i) (“action” by state alleging imminent endangerment). Most courts find that all these provisions require an actual lawsuit in court under the specified law, and that administrative actions are not sufficient, despite the lack of the term “in court” in sections 6972(b)(2)(B)(i) and 6972(b)(2)(C)(i). See Marrero Hernandez v. Esso Std. Oil Co., 597 F. Supp. 2d 272, 280 (D. P.R. 2009) (citing cases); but compare PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 618 (7th Cir. 1998) (informal agency action was not sufficient to bar suit under § 6972((b)(2)(C)(i) because they were not “‘actions’ in the legal sense in which the statute appears to be using the term, that is, formal proceedings whether in a court or before an agency”) (emphasis added)).

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iv. The state or EPA “action” (lawsuit) must be brought under the enumerated RCRA or CERCLA provisions. Lawsuits brought pursuant to other authorities will not bar the RCRA suit under the “diligent prosecution” bar.23 v. The action must be brought by EPA or a state (depending on which sub-section of 6972(b) is applicable) but some courts have left room for an argument that actions brought by other properly delegated governmental entities may suffice.24 vi. Plaintiffs have the burden of proving that prosecution is not diligent; burden is heavy as complaints about government’s prosecution schedule or strategy will not suffice.25 Presumption of diligence attaches to government prosecution of actions.26 Courts have found that consent decrees and their enforcement amount to diligent prosecution.27 vii. Courts are split regarding whether RCRA’s diligent prosecution bar is jurisdictional,28 but jurisdictional determination goes primarily to scope and standard of review on motion to dismiss.29 Appropriate facts will warrant dismissal where state or EPA is taking the required action. B. Certain RCRA suits barred where state or federal government is “actually engaging” in a CERCLA § 104 removal action. 42 U.S.C. § 6972(b)(2)(B)(ii) (federal); § 6972(b)(2)(C)(ii) (state). i. Only bars citizen suits filed under 42 U.S.C. § 6972(a)(1)(B) (imminent and substantial endangerment). ii. Only applies to removal actions taken pursuant to CERCLA § 104. 1. State removal actions: Courts have held that a state can only act pursuant to CERCLA § 104 where it has entered into a contract or cooperative agreement with the federal government to do so.30 State removal actions taken pursuant to other provisions, or without such an agreement, will not suffice to bar RCRA suit under this provision.31

23 Chico Serv. Station, Inc. v. SOL P.R. Ltd., 633 F.3d 20, 28 (1st Cir. 2011) (the government must be diligently pursuing “one of several enumerated judicial or administrative enforcement actions under [RCRA or CERCLA].”); Goe Engineering Co. v. Physicians Formula Cosmetics, Inc., 1997 U.S. Dist. LEXIS 23627, *27 n.6 (C.D. Cal. June 3, 1997) (the state action required for § 6972(b)(2)(C)(i) to bar the suit must have been taken under RCRA, not any other state or federal law.) 24 Starlink Logistics, Inc. v. ACC, LLC, 2012 U.S. Dist. LEXIS 87532 (M.D. Tenn. June 25, 2012) (noting in context of additional RCRA bar to suit, that “even if the court assumed that the Commissioner of the TDEC acted as the Administrator’s designee, Section 6972(b)(2)(B)(iv) would still be inapplicable because the administrative Consent Order was issued under state law, not Section 106 of CERCLA or Section 6973 of the RCRA.”). 25 See Cmty. of Cambridge Envtl. Health & Dev. Group v. City of Cambridge, 115 F. Supp. 2d 550, 554 (D. Md. 2000) (“This burden is a heavy one because diligence on the part of the enforcement agency is presumed.”) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 890 F. Supp. 470, 486 (D.S.C. 1995)); Karr v. Hefner, 475 F.3d 1192, 1198 (10th Cir. 2007) (“Citizen-plaintiffs must meet a high standard to demonstrate that [a government agency] has failed to prosecute a violation diligently.”). “[A] citizen-plaintiff cannot overcome the presumption of diligence merely by showing that the agency’s prosecution strategy is less aggressive than he would like or that it did not produce a completely satisfactory result.” SPS Ltd., 808 F. Supp. 2d at 810 (internal citations omitted). 26 Chesapeake Bay Found., 794 F. Supp. 2d at 614. 27 Id. (noting that decades old consent decree established required diligence because its mandates applied on an ongoing basis, not only when it was entered into). In this case, the court found ongoing, current action was being taken pursuant to the old consent decree. 28 See, e.g., Adkins, 644 F.3d at 492 (“RCRA’s limits on citizen suits appear in separate provisions that do not ‘speak in jurisdictional terms,’… the RCRA … ‘diligent prosecution’ bar is a nonjurisdictional claim-processing rule.”) A subject matter jurisdiction defense may be raised at any time, including for the first time on appeal. 29 See supra note 15. 30 Abundiz v. Explorer Pipeline Co., 2002 U.S. Dist. LEXIS 7053, *8-*13 (N.D. Tex. Apr. 22, 2002). 31 Id. at *12 (despite state removal activities at site, dismissal was not appropriate under § 6972(b)(2)(C)(ii) where there was no proof of an agreement or contract between the state and the federal government with respect to CERCLA authority at the specific site at issue); City of Bangor v. Citizens Commc’ns. Co., 2004 U.S. Dist. LEXIS 12846, *36-*37 (D. Me. July 6, 2004) (“I cannot conclude that the

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2. EPA removal actions: EPA action at a site is generally taken only pursuant to CERCLA § 104 because § 104 provides the authority to undertake cleanups.32 However, for certain sites that are federally owned and listed on the National Priorities List (“NPL”), CERCLA § 120 provides cleanup authority; § 120 removal actions would not bar RCRA citizen suits under this RCRA provision.33 3. CERCLA removal actions pursuant to § 104 of CERCLA by federal agencies other than EPA are generally sufficient to bar the citizen suit, and participation by other federal agencies is evidence that cleanup authority is pursuant to § 104. 34 iii. To bar a RCRA claim under § 6972(b)(2)(B)(ii) (federal) and § 6972(b)(2)(C)(ii) (state), the government actions must be CERCLA “removal” actions. CERCLA defines “removal” actions broadly to include activities designed to assess, monitor, and take initial responses with respect to hazardous substance releases.35 1. Must demonstrate that the actions are CERCLA removal actions as defined by CERCLA. 2. Definition of removal and remedial actions are broad and overlap,36 but this defense is only triggered where removal, not remedial actions are taken at a site. 3. Whether actions are “removal” actions is fact specific but courts generally find any actions consistent with initial investigations, monitoring, and initial clean up constitute CERCLA removal actions. This includes initial

State's financial assistance with site investigation and planning pursuant to the City and State's Memorandum of Agreement rises to the level of CERCLA § 104 action, particularly where . . . the evidence does not suggest that the State has done anything to compel anyone to remediate the Dunnett's Cove site pursuant to any authority arising out of CERCLA.”). 32 Wash. Envtl. Council v. Mount Baker-Snoqualmie Nat'l Forest, 2009 U.S. Dist. LEXIS 46077 (W.D. Wash. 2009) (noting that CERCLA § 104 provides authority for federal removal and remedial actions); Ark. Peace Ctr. v. Ark. Dep’t of Pollution Control & Ecology, 999 F.2d 1212, 1218 (8th Cir. 1993) (EPA taking over removal action and approving certain exemptions only authorized under CERCLA § 104 were evidence that the federal action was taken pursuant to CERCLA § 104). 33 CERCLA § 120 mandates a procedure to address contamination at federally owned sites. If the process results in a listing of the site on the NPL, § 120 requires that the government commence a remedial investigation and feasibility study which may lead to remedial action. 42 U.S.C. § 9620(e). Accordingly, § 120 authorizes the government to undertake response actions but only at federally owned sites that are listed on the NPL. For sites not listed on the NPL (whether federally owned or otherwise), “[t]he only language authorizing remedial actions on such sites is found in § 9604, the language of which is broad enough to be read as an authorization for all remedial actions, regardless of the land upon which the action takes place.” OSI, Inc. v. United States, 525 F.3d 1294, 1298-1299 (11th Cir. 2008). Even in the case of a federally owned site on the NPL, the language of CERCLA is broad enough to argue that either § 104 or § 120 could authorize a remedial action, as the OSI court noted. On a federally owned NPL listed site, the facts (e.g., references to CERCLA authority in response documents) will be important to establish whether the cleanup was undertaken pursuant to § 104 or § 120. 34 Reynolds v. Lujan, 785 F. Supp. 152, 154 (D. N.M. 1992) (“it would thwart the intent of Congress if the EPA’s CERCLA activities are not to be tampered with but CERCLA activities by other agencies can be.”); Wash. Envtl. Council v. Mount Baker-Snoqualmie Nat’l Forest, 2009 U.S. Dist. LEXIS 46077, *9-*16 (W.D. Wash. June 2, 2009) (Section 120 requires EPA to undertake the response action whereas Section 104 cleanup authority may be delegated; as a result, participation of Forest Service in removal action pursuant to President’s delegated authority is evidence that removal action was taken pursuant to CERCLA § 104). 35 42 U.S.C. § 9601(23) (removal includes “cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances . . . or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment”). 36 United States v. W.R. Grace & Co., 429 F.3d 1224, 1246 (9th Cir. 2005) (noting “sweeping” scope of definition of removal action and substantial overlap between definitions of “removal” and “remedial” and substantial lack of clarity in the law on the distinction.)

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monitoring, preparation of an RI/FS and Record of Decision (“ROD”), and agency oversight.37 4. Consent decree negotiations and entry of a consent decree have been viewed as “removal” actions where underlying “removal” actions are within the scope of the decree because the definition of “removal” includes any enforcement activity “related” to a removal action. 42 U.S.C. § 9601(25). EPA oversight of actions taken pursuant to a consent decree is also a removal action.38 iv. The RCRA bar is generally ongoing once evidence shows government is “actually engaging” in a CERCLA § 104 action. However, some courts have found that lackluster EPA engagement can defeat the “actually engaging” statutory prerequisite.39 C. Certain RCRA suits barred where federal or state government has “incurred costs to initiate a [CERCLA § 104] RI/FS” and is “diligently proceeding” with a remedial action. 42 U.S.C. § 6972(b)(2)(B)(iii) (federal); § 6972(b)(2)(C)(iii) (state). i. Only applies to bar imminent endangerment citizen suits brought under §6972(a)(1)(B). ii. The state or federal remedial action must be taken pursuant to CERCLA § 104.40 iii. Must demonstrate CERCLA remedial action. “Remedial action” is defined very broadly, overlaps with definition of removal action, and is determined on a case by case basis, but generally consists of those actions consistent with a permanent remedy.41 Notably, courts have been willing to bar RCRA imminent endangerment suits where costs to initiate an RI/FS have clearly been incurred but persuasive evidence of “remedial action” is lacking.42 iv. The existence of a Consent Order and its details also have been used to establish the required diligence.43

37 Mount Baker-Snoqualmie Nat'l Forest, 2009 U.S. Dist. LEXIS 46077 at *11 (conducting preliminary assessments of mines, performing a comprehensive site investigation, and contracting for an engineering evaluation were all CERCLA removal actions); see, e.g. United States v. E.I. Dupont De Nemours, 432 F.3d 161, 170 (3d Cir. 2005) (“EPA oversight falls comfortably within the definitions of ‘removal action’ and ‘remedial action’”); United States v. Davis, 882 F. Supp. 1217, 1225 (D.R.I. 1995) (“Both the statutory language and the relevant case law squarely support the government's position that a removal action includes the RI/FS and the issuance of the ROD”); Cannon v. Gates, 538 F.3d 1328, 1334 (10th Cir. 2008) (where the government has begun to “monitor, assess, and evaluate the release or threat of release of hazardous substances,” a removal action is underway); Cal. Dep’t of Toxic Substances Control v. Alco Pac., Inc., 308 F. Supp. 2d 1124, 1137 (C.D. Cal. 2004) (“While the statutory definitions of ‘removal’ and ‘remedial’ are vague and overlap, it appears that removing contaminated soil fits more closely with the plain meaning of the term ‘removal’”). 38 United States v. E.I. du Pont de Nemours & Co., 341 F. Supp. 2d 215, 237 (W.D.N.Y. 2004) (involving a consent decree requiring groundwater assessment studies that contained no reference to CERCLA). 39 Merry v. Westinghouse Elec. Corp., 697 F. Supp. 180, 182 (M.D. Pa. 1988) (finding that EPA was not “actually engaging” in a removal action or “diligently proceeding” with a remedial action where party submitted its work plan for the RI/FS outside of time limits established in consent order and no evidence existed that EPA had taken any action to assure that the RI/FS progressed). 40 See supra notes 29, 31- 33. 41 See supra note 35; 42 U.S.C. § 9601(24). 42 Carrow v. Javit, 1993 U.S. Dist. LEXIS 16410, *14-*17 (D. Conn. Oct. 14, 1993) (finding RCRA citizen suit barred because costs had been incurred to initiate CERCLA RI/FS, even though no remedial action had been commenced at time suit filed); Muniz v. Rexnort, 2004 U.S. Dist. LEXIS 17939, *11-*13 (N.D. Ill. Sept. 1, 2004) (suit barred where costs incurred to develop data to be used in RI/FS but little evidence cited demonstrating diligent remedial action efforts). 43 See City of Heath v. Ashland Oil, Inc., 834 F. Supp. 971, 981-82 (S.D. Ohio 1993).

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D. Certain RCRA suits barred where EPA has obtained a court order (including a consent decree) or issued an administrative order under CERCLA § 106 or RCRA § 7003, pursuant to which a responsible party is “diligently” conducting a removal action, RI/FS, or a remedial action. 42 U.S.C. § 6972(b)(2)(B)(iv). i. Only applies to bar imminent endangerment citizen suits brought under §6972(a)(1)(B). ii. Some courts have ruled that this provision only bars RCRA actions that were filed after issuance of the consent decree or order; it does not bar the continuation of citizen suits filed prior to a consent decree or order.44 iii. EPA (not a state)45 must have actually obtained a court order (including a consent decree entered by a court) or issued an administrative order under CERCLA § 106 or RCRA § 6973. Administrative orders (or consent decrees) entered into under any section other than CERCLA § 106 or RCRA § 6973 are not sufficient to bar a RCRA suit under this provision.46 iv. If a unilateral administrative order or administrative consent order is at issue (rather than a court order or consent decree entered in court), the citizen suit is prohibited only as to the “scope and duration” of the administrative order.47 By contrast, court orders (and court entered consent decrees) have the effect of prohibiting the RCRA

44 See Inc. Vill. of Garden City v. Genesco, Inc., 2009 U.S. Dist. LEXIS 87354, *16 (E.D.N.Y. Sept. 23, 2009) (citing cases). 45 Nat. Resources Def. Council v. County of Dickson, 2010 U.S. Dist. LEXIS 32423, *11-*12 (M.D. Tenn. Apr. 1, 2010) (rejecting argument that § 6972(b)(1)(B)(iv) should bar a RCRA suit where the state agency, not EPA, issued the order because the Memorandum of Agreement between the state and EPA “does not authorize the State to step into the shoes of the EPA administrator for purposes of bringing an action or issuing an order regarding an ‘imminent hazard’ under 42 U.S.C. § 6973. That authority is retained by the EPA Administrator . . .”); Davies v. Nat’l Coop. Refinery Ass’n, 1996 U.S. Dist. LEXIS 10122, *18 (D. Kan. July 12, 1996) (“the court notes that Congress made the statutory bar in § 6972 applicable when the EPA issues administrative orders or enters into consent decrees pursuant to which a responsible party is diligently remedying the endangerment, but did not include a similar provision for actions taken pursuant to administrative orders or consent decrees issued by state agencies. . . . This suggests that Congress intended the citizen suit enforcement provision to remain available in the event that a state agency’s response to an imminent hazard is inadequate.”). The opinion in Nat. Resources Def. Council v. County of Dickson, supra, at least leaves room for an evidentiary showing that a state possesses specially delegated RCRA § 6973 authority. 46 Commander Oil Corp. v. Barlo Equip. Corp., 1997 U.S. Dist. LEXIS 23920, *37 (E.D.N.Y. June 10, 1997); Starlink, 2012 U.S. Dist. LEXIS 87532 at *24-*26 (RCRA bar to citizen suit would not apply to order issued under state law because it is not issued under CERCLA § 106 or RCRA § 6973). Although CERCLA § 122 authorizes EPA to enter into certain agreements, administrative orders entered into pursuant to CERCLA § 122 will not bar the RCRA citizen suit under this provision. See Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498, 1507 (E.D. Wis. 1992). 47 Courts have looked to the relief requested by the RCRA suit and the relief ordered by the administrative order to determine if the scope of the RCRA suit is beyond the scope of the administrative order, and therefore permissible. See Muniz v. Rexnord Corp., 2004 U.S. Dist. LEXIS 17939 (N.D. Ill. Sept. 1, 2004). In Muniz, the parties entered an administrative consent order (“AOC”) with respect to a site, and the RCRA plaintiffs argued that they sought “monies for service fees and monthly water bills and to compel Defendants to abate airborne contamination caused by the contaminated groundwater and that such relief is not included in the scope of the AOC.” Id. at *9. The court noted that the AOC did not address possible airborne contamination from the contaminated groundwater, but there was some evidence that EPA had stated that airborne contamination would be addressed in a later stage of the Superfund process. Because the AOC did not address the airborne contaminant issue, and even though EPA said it would address it later, the court found that the RCRA suit was not barred. Id.; see also Organic Chem. Site PRP Group v. Total Petroleum, Inc., 58 F. Supp. 2d 755, 764-65 (RCRA claim could proceed because it addressed both groundwater and soil contamination while the Administrative Order only addressed groundwater contamination); A-C Reorganization Trust v. E.I. DuPont De Nemours & Co., 968 F. Supp. 423, 430-31 (E.D. Wis. 1997) (finding plaintiff’s claims not barred by AOC because there existed at least two possible ways the RCRA claims went beyond the Consent Order); Voss v. Waste Mgmt. of Ill., Inc., 2006 U.S. Dist. LEXIS 4302, *25-*27 (N.D. Ill. Feb. 2, 2006) (“Thus, a RCRA claim to abate, say, a coal-burning factory’s pollution of the air over a gas station is outside the scope of an administrative order addressing, say, soil pollution caused by leaking pumps at that gas station.” The Voss court nonetheless found that a RCRA suit complaining about vinyl chloride vapors was within the scope of an AOC addressing vinyl chloride in groundwater, despite the fact that AOC did not mention vapors, because the two are inextricably linked and “[i]t would make little sense for the parties to litigate abatement of the vapor in this Court while the EPA, separate and apart from this litigation, works to abate vinyl chloride in the groundwater.” ).

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suit even if the RCRA suit addresses matters beyond the scope of the order. See 42 U.S.C. § 6972(b)(2)(B)(iv). v. Pursuant to the order EPA obtains, the responsible party must be “diligently” conducting a removal action, RI/FS, or remedial action. There is no clear definition of “diligence,” but one court has said this means “steadily applying oneself.”48 E. Any RCRA citizen suit is barred under CERCLA if it “challenges” a “removal or remedial action selected under [CERCLA § 104].” 42 U.S.C. § 9613(h). i. CERCLA § 113(h) was enacted to assure that where the government takes action to address waste sites, the cleanup will not be interrupted by intrusive litigation.49 Federal courts have used CERCLA § 113(h) to dismiss many RCRA citizen suits. ii. Because the majority of courts find that § 113(h) is jurisdictional, a motion to dismiss is properly made pursuant to Rule 12(b)(1) for lack of jurisdiction.50 The Seventh Circuit has found § 113(h) is not jurisdictional and Rule 12(b)(6) is properly used to seek dismissal.51 The distinction is important. If it is a jurisdictional question under Rule 12(b)(1), the court can look beyond the pleadings and even resolve disputed facts to determine its jurisdiction; plaintiff can also re-file in proper court at proper time if jurisdiction presents itself at another time. If not jurisdictional, the court is more limited in its review and makes presumptions in favor of the plaintiff; however, the decision may preclude future lawsuits.52 1. Requirements for application of § 113(h): a. Must have an ongoing (not completed) CERCLA removal or remedial action. “Removal” and “Remedial” actions are broadly defined and generally include any action designed to assess or monitor the threat or choose and implement a remedy.53 Whether CERCLA § 113(h) is triggered is a fact specific inquiry as to what actions have been undertaken at the site: even very minimal levels of government action to clean up a site – including mere oversight

48 See Voss, 2006 U.S. Dist. LEXIS 4302 at *23-*25 (noting lack of cases interpreting “diligence” under RCRA § 6972(b)(2)(B)(iv) but finding sufficient diligence as alleged in the RCRA plaintiffs’ complaint where “plaintiffs allege the defendants have ‘undertaken investigative and limited remedial activities at the Landfill and surrounding areas.’ Among other things, plaintiffs allege that defendants have investigated the nature and extent of the contamination, sampled residential and monitoring wells in the Class area, interpreted data generated by the sampling, reported to the EPA, studied the feasibility of providing a permanent alternative source of clean water to Class area families and paid for bottled water for residents in the Class area. These are the ‘removal actions’ outlined in the [Administrative Order] . . . .”); Chesapeake Bay Found., 794 F. Supp. 2d at 614 (enforcement of consent decree evidences diligence, under separate RCRA bar also requiring diligence); see supra notes 25-27, 43 and accompanying text (regarding establishing “diligence” pursuant to RCRA statutory defenses). 49 See River Village W. LLC v. People’s Gas Light and Coke Co., 618 F. Supp. 2d 847, 854-55 (N.D. Ill. 2008). 50 See Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214, 1220 (9th Cir. 2011) (analyzing Supreme Court precedent on interpreting whether statutes are jurisdictional, finding that CERCLA § 113(h) is jurisdictional, and affirming the district court’s dismissal on a Rule 12(b)(1) motion); see also Jach v. American Univ., 245 F. Supp. 2d 110, 111 (D.D.C. 2003) (granting 12(b)(1) motion to dismiss for lack of jurisdiction under CERCLA § 113(h)); APWU v. Potter, 343 F.3d 619 (2d Cir. 2003) (affirming district court’s order dismissing RCRA citizen suit for lack of jurisdiction under CERCLA § 113(h) on motion made under Rule 12(b)(1)); Shea Homes L.P. v. United States, 397 F. Supp. 2d 1194, 1196 (N.D. Cal. 2005) (dismissing RCRA claim under CERCLA § 113(h) on a Rule 12(b)(1) motion). 51 See Frey v. EPA, 270 F.3d 1129, 1132 (7th Cir. 2001) (“A person who does not comply with § 113(h) will not prevail, but the court’s power to adjudicate the case is clear, and a dismissal should be predicated on Federal Rule of Civil Procedure 12(b)(6), not on 12(b)(1)”). 52 See supra note 15. 53 42 U.S.C. § 9601(23)-(24); see supra notes 35-37.

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of voluntary cleanup activities or initial sampling and assessment activities – may be sufficient to bar a RCRA citizen suit.54 i. A consent decree is not a prerequisite to success of this defense. However, actions undertaken to negotiate a consent decree can be CERCLA removal or remedial action,55 and a consent decree can be strong evidence of ongoing removal and/or remedial action to the extent the decree has not been terminated.56 ii. Once there is any CERCLA removal or remedial action, CERCLA bars all challenges until the remedial action (i.e., the entire remedy as set forth in the ROD) is complete. Delay of cleanup efforts, no matter how egregious, generally will not suffice to overcome the §113(h) bar to RCRA citizen suits.57 Although the law is clear that any CERCLA removal or remedial action no matter how minor is sufficient to bar a citizen suit, in practice it is helpful to satisfy a court that the equities favor dismissal.58 2. The RCRA lawsuit must “challenge” the CERCLA cleanup action. a. Courts take a broad view of what constitutes a challenge: if the relief requested will impact the remedial action selected in any way, the RCRA suit is an impermissible challenge.59 b. Majority of courts find that lawsuits seeking an injunction nearly always are impermissible “challenges” because injunctions require the court to determine what remediation is necessary.60 One court has found that requesting penalties also is always a challenge

54 E.I. Dupont De Nemours, 432 F.3d at 170 (“EPA oversight falls comfortably within the definitions of ‘removal action’ and ‘remedial action’”); Davis, 882 F. Supp. at 1225 (Removal actions include the preparation of an RI/FS and issuance of a ROD); Cannon, 538 F.3d at 1334 (10th Cir. 2008) (Section 9613(h) applies even if the government has only begun to monitor, assess, and evaluate the threat of release); Camden Cnty. Bd. of Chosen Freeholders v. Camden Cnty. Mun. Utils. Auth., 2002 U.S. Dist. LEXIS 21328, at *12 (D.N.J. June 5, 2002) (remedial action “far from complete” for the purposes of § 113(h) where the clean-up had proceeded in two phases over many years and included a consent decree and trial runs regarding groundwater cleanup that had not yet begun); OSI, 525 F.3d at 1298 (dismissing a RCRA citizen suit pursuant to CERCLA § 113(h) where response actions were still ongoing); Shelton v. Hercules, 1999 U.S. Dist. LEXIS 23463, at *20 n.9, *22 (E.D. Ark. Oct 8, 1999) (response action still ongoing where EPA required continued monitoring even though most of the cleanup work was complete). 55 As noted above, consent decree negotiations and entry of a consent decree encompassing removal or remedial actions should be considered removal or remedial action respectively because the definitions of “removal” and “remedial” include any enforcement activity “related” to any underlying action that is a removal or remedial action. 42 U.S.C. § 9601(25). EPA oversight of actions taken pursuant to any such consent decree is also a removal action. See United States v. E.I. du Pont de Nemours & Co., 341 F. Supp. 2d 215, 237 (W.D.N.Y. 2004); see also Camden Cnty., 2002 U.S. Dist. LEXIS 21328 at *12 (describing a remedial action as including, inter alia, a consent decree that encompasses remedial action). 56 Broward Gardens Tenants Ass’n v. United States EPA, 311 F.3d 1066, 1073 (11th Cir. 2002) (“Section 113(h) speaks of challenges not to consent decrees but to removal or remedial actions selected by EPA. Nonetheless, because the consent decree implements EPA’s selected remedial plan for Wingate, if the complaint challenges the consent decree it challenges EPA’s selected remedial action.”). 57 River Village, 618 F. Supp. 2d at 855 (once the ongoing EPA actions at the site have been completed, plaintiffs may file a CERCLA citizen suit); Schalk v. Reilly, 900 F.2d 1091, 1095 (7th Cir. 1990) (“when a remedy has been selected, no challenge to the remedy may occur prior to the completion of the remedy”) Clinton County Comm’rs v. United States EPA, 116 F.3d 1018, 1023 (3d Cir. 1997) (“a remedial action ‘selected,’ which federal courts have no jurisdiction to review, is one chosen but not fully implemented . . .”); McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 330 (9th Cir. 1995) (recognizing § 113(h) may delay judicial review for years or permanently). 58 See generally Anacostia Riverkeeper v. Wash. Gas Light Co., 2012 U.S. Dist. LEXIS 135799, at *20-25 (D.D.C. Sept. 24, 2012) (discussing that significant cleanup had occurred and was ongoing, and dismissing RCRA citizen suit). 59 Jach, 245 F. Supp. 2d at 115. 60 River Village, 618 F. Supp. 2d at 854-855; OSI, 525 F.3d at 1298 (injunction requiring removal of contaminants would interfere with the CERCLA remedy).

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because it could affect the responsible party’s financial ability to perform the cleanup.61 3. Removal or remedial action must be taken pursuant to CERCLA § 104. a. Section 113(h) of CERCLA bars challenges to removal or remedial actions taken under § 104 or challenges to unilateral cleanup orders issued under § 106. 42 U.S.C. § 9613(h). b. CERCLA § 104 is arguably the only section that authorizes EPA to undertake removal and remedial action under CERCLA. Thus, there is likely to be little dispute that a CERCLA cleanup is undertaken pursuant to § 104 (or § 106 if it is an order). However, cleanup efforts at federally owned sites listed on the NPL may be initiated under § 120, rather than §§ 104 or 106.62 It is helpful for defensive purposes that a consent decree or other formal cleanup documents reference § 104. c. CERCLA § 113(h) provides no defense to RCRA citizen suits challenging state cleanup activities undertaken pursuant to state statutory authority.63 It must be a CERCLA cleanup action. iii. Cases where Section 9613(h) is not applicable: The Seventh Circuit declined, in Frey v. United States, to apply § 113(h) where EPA argued it was undertaking remedial action but the court was not satisfied with EPA’s action.64 The court was not comfortable reading § 113(h) in a way that would bar suit indefinitely where EPA was not taking action to the satisfaction of the court. The court therefore required “some objective indicator that allows for an external evaluation, with reasonable target completion dates, of the required work for a site” before § 113(h) would bar the suit.65 Although a minority case, the Seventh Circuit’s opinion can be used to argue that lack of sufficient EPA action should deem the response action “complete” and therefore open to challenge. F. Primary Jurisdiction and Abstention. i. Primary jurisdiction and abstention are general defenses that are not specific to RCRA. ii. Under the doctrine of primary jurisdiction, a federal court may stay proceedings where a claim involves issues within the “special competence of an administrative body.”66 1. Factors generally weighed by courts in determining applicability of primary jurisdiction include: (1) whether the court is being called upon to decide factual issues not within the conventional experience of judges or whether the issues are of the sort that a court routinely considers; (2) whether the defendants could be subjected to conflicting orders of both the court and the administrative agency; (3) whether relevant agency proceedings have actually been initiated; (4) whether the agency has demonstrated diligence in

61 Pakootas, 646 F.3d at 1220-21. 62 Pollack v. United States DOD, 507 F.3d 522, 526 (7th Cir. 2007); see supra notes 33-34 (discussing CERCLA cleanup authority under § 120 and § 104). 63 Starlink, 2012 U.S. Dist. LEXIS 87532 (Section 113(h) does not apply where cleanup orders are issued by a state agency pursuant to state statutory authority). 64 403 F.3d 828 (7th Cir. 2005). 65 Id. at 833. 66 County of Dickson, 2010 U.S. Dist. LEXIS 32423 at *24-*25 (quoting United States v. Western Pacific R.R. Co., 352 U.S. 59, 64 (1956)).

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resolving the issue or has instead allowed the issue to languish; and (5) the type of relief requested.67 2. The majority of courts considering the above factors have declined to apply primary jurisdiction in the RCRA context, primarily based on the rationales that (1) Congress intended that federal courts exercise jurisdiction over RCRA citizen suits absent satisfaction of a statutory bar68, and (2) RCRA claims are within the competence of federal courts, and do not require special agency expertise.69 However, primary jurisdiction has been found applicable where: a consent order with the state completely overlapped with the relief sought by plaintiff’s RCRA claims70; where EPA investigation and remediation had been diligent and ongoing for many years, and injunctive relief ordered by the court could be conflicting;71 and where state agency had extensive involvement in addressing alleged contamination and federal court intervention could result in delay of state agency response or substantial duplication of effort.72 iii. Abstention doctrines arise out of concern for the proper jurisdictional balance between state and federal courts, and can provide a basis for dismissal of a federal court complaint. Defendants in RCRA citizen suits most frequently invoke the doctrine known as Burford73 abstention, which applies “in situations where a federal suit will interfere with a state administrative agency’s resolution of difficult and consequential questions of state law or policy doctrine.”74 However, another abstention doctrine known as Colorado River75 abstention, which “permits federal courts to defer to a ‘concurrent state proceeding’ as a matter of ‘wise judicial administration,’”76 has been raised in RCRA suits as well, often as an alternative basis for a stay. 1. The standard inquiry for Burford abstention: where timely and adequate state court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) where there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar; or (2) where the exercise of federal review of the question

67 Davies, 963 F. Supp. at 997-98 (noting with respect to the fifth factor that “the doctrine of primary jurisdiction is more readily applied to claims for injunctive relief requiring scientific or technical expertise.”). It should be noted that the factors for addressing invocation of primary jurisdiction vary somewhat by jurisdiction. 68 See, e.g., City of Hattiesburg v. Hercules, Inc., No. 2:13-cv-208 (S.D. Miss. March 27, 2014) and cases cited therein. 69 See, e.g., SPS Ltd., 808 F. Supp. 2d 794, 811 n.13 (D. Md. 2011). 70 SPPI-Somersville Inc., v. TRC Co., 2009 LEXIS U.S. Dist. 74464, *53-*54 (N.D. Cal. 2009) (“there is no basis for the relief plaintiffs seek because the contamination is already being addressed by the DTSC through the Consent Order and the RAP.”); but cf. Interfaith Cmty. Org., Inc. v. PPG Indus., 702 F. Supp. 2d 295 (D.N.J. 2010) (declining to apply primary jurisdiction where a consent decree did not cover all remedies sought by the plaintiffs, and the court took particular note that the remedies available from the court could be far broader than those of the consent decree). 71 Holder v. Gold Fields Mining Corp., 506 F. Supp. 2d 792, 805 (N.D. Okla. 2007). 72 Davies, 963 F. Supp. at 997-98; McCormick v. Halliburton Co., No. CIV-11-1272-M, 2012 U.S. Dist. LEXIS 46661 (W.D. Okla. 2012) (where defendant entered into consent order with state agency requiring, inter alia, investigation, remediation, and reporting, court found all relevant factors favored application of primary jurisdiction and dismissed RCRA claim). 73 See Burford v. Sun Oil, 319 U.S. 315 (1943). 74 Chico Serv. Station, 633 F.3d at 26 n.9. 75 Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). 76 Id.

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in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.77 2. The standard inquiry for Colorado River abstention: whether (1) there is a parallel state proceeding that raises “substantially identical claims [and] nearly identical allegations and issues”; and (2) there are “extraordinary circumstances” meriting abstention. Six factors have generally been established for determining whether “extraordinary circumstances” exist: “(1) [in an in rem case,] which court first assumed jurisdiction over [the] property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which jurisdiction was obtained; (5) whether federal or state law controls; and (6) whether the state court will adequately protect the interests of the parties.”78 3. A number of courts have rejected arguments to dismiss RCRA claims based on abstention, including reversals by the First, Third, and Seventh Circuits within the past two years.79 These rulings are based primarily on the rationale that Congress intended federal courts to exercise their jurisdiction over RCRA citizen suits, and decline jurisdiction only in the limited instances delineated by Congress in the statute itself (e.g., the diligent prosecution bar, etc.).80 a. However, some courts have precluded RCRA claims based on Burford abstention, e.g., with respect to citizen suits challenging agency permitting, licensing or siting decisions under state law, because such suits are collateral attacks on agency decision-making not within the purposes of RCRA.81 b. In addition, Burford abstention has been applied to stay RCRA claims until the conclusion of state proceedings.82 IV. Defenses Based on Standing A. Article III requires that citizen plaintiffs show (1) they have suffered an injury (may be aesthetic or environmental or health-based) which is concrete and particularized, and actual or imminent; (2) the defendant’s actions caused that injury; and (3) a favorable decision will redress the plaintiff’s injury.83 An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.84 B. To satisfy the “injury in fact” requirement, a plaintiff must show “an invasion of a concrete and particularized legally protected interest,” that is distinct and palpable, and actual or imminent; it may not be either “conjectural or hypothetical,” or “too remote temporally.”85

77 New Orleans Public Services, Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989) (declining to apply Burford abstention in suit over city council order denying reimbursement of costs to public utility by ratepayers). 78 Interfaith, 702 F. Supp. at 306 (internal citations omitted). 79 See Adkins, 644 F.3d 483; Chico Serv. Station, 633 F.3d 20; Raritan Baykeeper v. NL Industries, 660 F.3d 686, 689 (3d Cir. 2011). 80 See, e.g., Adkins, 644 F.3d 483; Sisters of Notre Dame De Namur v. Garnett-Murray, 2012 U.S. Dist. LEXIS 78747 (N.D. Cal. 2012); PMC, 151 F.3d at 619. 81 See, e.g., Coalition for Health Concern v. LWD, Inc., 60 F.3d 1188, 1193 (6th Cir. 1995); Ellis v. Gallatin Steel Co., 390 F.3d 461, 481 (6th Cir. 2004). 82 See e.g., Starlink Logistics, Inc. v. ACC, LLC, 2013 U.S. Dist. LEXIS 7553 (M.D. Tenn. 2013). 83 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Friends of the Earth v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167 (2000). 84 Laidlaw, 528 U.S. at 181 (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). 85 Id. at 180 (quoting Lujan, 504 U.S. at 560).

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i. To satisfy the injury requirement, a plaintiff often needs personal knowledge – not just information and belief – that harmful pollution occurred. ii. “[W]hen a defendant challenges standing at the summary judgment stage, the plaintiff cannot rest on mere allegations of injury resulting from the defendant’s conduct, but must actually demonstrate ‘a factual showing of perceptible harm.’”86 iii. Injuries which have satisfied the standing requirement in RCRA citizen suits include: averments that plaintiffs no longer picnicked, walked, and bird-watched due to defendant’s discharge of pollutants to a nearby river87; concern about injuries to health when shopping one block from a chromium contaminated site; a “showing of fires, of excessive animals, insects and other scavengers …, and of groundwater contamination” from neighboring landfill88; a security interest of a creditor in contaminated real property.89 iv. An economic injury alone is generally sufficient to confer standing in RCRA citizen suits.90 Thus, in a RCRA citizen suit by a current property owner against a former owner, a claim of diminished property value or inability to proceed with development plans due to environmental contamination may be a sufficient injury for standing. v. Injuries which have not satisfied the standing requirement in environmental cases include: where plaintiff no longer owned property, and favorable decision would not redress any of plaintiff’s alleged injuries91; claimed recreational injury based solely on intent to visit property at some indefinite point in future92; where association members failed to demonstrate their members suffered injury as a result of state emergency orders allowing certain waste practices after Hurricane Katrina and where members did not witness certain disposal activities.93 C. The causation prong will be satisfied where the plaintiff’s injury is “fairly traceable” to the defendant’s conduct, meaning there is a “substantial likelihood” that the conduct caused the harm. 94 Courts have ruled that “[t]raceability does not mean that plaintiffs must show to a ‘scientific certainty’ that defendant’s [waste] caused the precise harm . . .. The ‘fairly traceable’ standard is ‘not equivalent to a requirement of tort causation;’ a plaintiff ‘must merely show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged’ in the area of concern.95 D. To satisfy redressability, plaintiffs must show the relief will materially reduce their reasonable concerns about the claimed endangerments. Plaintiffs need not show a site will be returned to “pristine condition.”96 Also, the U.S. Supreme Court has ruled that the deterrent effect of civil penalties satisfies the redressability requirement.97 (It should be noted that monetary

86 Forest Park Nat’l Bank & Trust v. Ditchfield, 2012 U.S. Dist. LEXIS 103007, *30 (N.D. Ill. July 24, 2012) (quoting Lujan, 504 U.S. at 561-62, 566). 87 Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 255 (3d Cir. 2005). 88 Covington v. Jefferson County, 358 F.3d 626, 639 (9th Cir. 2004). 89 DMJ Assocs., L.L.C. v. Capasso, 288 F. Supp 2d 262 ( E.D.N.Y. 2003). 90 See, e.g., id. (holding creditor’s security interest in property a sufficient economic stake to confer standing); Litgo New Jersey Inc. v. Jackson, 2006 U.S. Dist. LEXIS 83474, *8 (D.N.J. 2006) (“Litgo is the owner of the Site and may suffer economic harm due to the alleged contamination. This, by itself, is sufficient injury to confer standing under RCRA.”). 91 Doyle v. Town of Litchfield, 372 F. Supp. 2d 301, 303 (D. Conn. 2005). 92 Lujan v. Nat’l Wildlife Federation, 497 U.S. 871 (1990). 93 La. Envtl. Action Network v. McDaniel, 2008 U.S. Dist. LEXIS 80655 (E.D. La. Mar. 11, 2008). 94 Me. People’s Alliance v. Holtrachem Mfg. Co., L.L.C., 211 F. Supp. 2d 237, 253 (D. Me. 2002) (internal citations omitted). 95 Id.; see also Interfaith, 399 F.3d at 257; Consol. Cos. v. Union Pac. R.R. Co., 2006 U.S. Dist. LEXIS 8795, *30 (W.D. La. 2006). 96 Interfaith, 399 F.3d at 257. 97 Laidlaw, 528 U.S. at 185-86.

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compensation for cleanup efforts by a plaintiff is not an available remedy under RCRA’s imminent and substantial endangerment provision.98) E. Standing can be a powerful defense in contexts common to RCRA. For example: i. Where plaintiff no longer owns the property at issue (or has no other legally cognizable interest in property), there is no injury and no redress is available.99 ii. Where a remediation plan is in place and cleanup is ongoing, plaintiff may lack an injury capable of redress because the court cannot order superfluous relief (and RCRA does not allow for recovery of past cleanup costs).100 1. Mootness and abstention arguments are closely related to redressability, particularly where a remediation plan in place. 2. Although not expressly a standing ruling, the Third Circuit has affirmed dismissal on summary judgment where the injunction sought would provide no meaningful relief because plaintiff had been ordered to conduct remediation under a consent order with the state; thus, the relief sought against defendant was not necessary and beyond the scope of RCRA.101 V. Defenses Based on Lack of Ongoing Violation or Retroactivity A. A citizen suit for alleged regulatory violations (42 U.S.C. § 6972(a)(1)(A)) is not permitted for wholly past violations.102 B. Citizen suits for alleged regulatory violations (42 U.S.C. § 6972(a)(1)(A)) are not permitted when based on defendant conduct that occurred entirely before the enactment of RCRA, or before the regulations allegedly violated became effective.103 C. Courts are divided on whether a former owner can be sued for alleged ongoing regulatory violations due in part to questions about the defendant’s ability to address the alleged violation without control of the site.104 VI. Defenses Where Authorized State Hazardous Waste Program Supersedes Federal Regulations A. A few courts have held that a plaintiff may not bring suit to enforce federal RCRA regulations where they have been superseded by an EPA-authorized state hazardous waste program.105

98 See, e.g., Meghrig v. KFC Western Inc., 516 U.S. 479, 484 (1996). 99 See Gulf Coast Asphalt Co., LLC v. Chevron U.S.A. Inc., 2010 U.S. Dist. LEXIS 90334, *21-27 (S.D. Ala. Aug. 30, 2010); Doyle v. Town of Litchfield, 372 F. Supp. 2d 301, 303 (D. Conn. 2005). 100 SPPI-Somersville, 2009 U.S. Dist. LEXIS 74464 at *49-*55. This defense may also be formulated as mootness or failure to state a claim. See id. at *54 (“Whether this is viewed as a lack of standing because the harm will not be redressed by this Court, or as a failure to demonstrate entitlement to relief under RCRA, the problem is the same: there is no basis for the relief plaintiffs seek because the contamination is already being addressed by the DTSC through the Consent Order and the RAP.”) 101 Trinity Indus. v. Chi. Bridge & Iron Co., 735 F.3d 131 (3d Cir. 2013); see also Stratford Holding, LLC v. Foot Locker Retail, Inc., 2013 U.S. Dist. LEXIS 145120 (W.D. Okla. 2013) (applying same reasoning under mootness and abstention analyses on motion to dismiss). 102 See, e.g., Marrero Hernandez, 597 F. Supp. 2d at 283-84; Bd. of County Comm’rs of La Plata v. Brown Group Retail, Inc., 598 F. Supp. 2d 1185, 1201 (D. Colo. 2009); Browning v. Flexsteel Industries, Inc., 959 F. Supp. 2d 1134 (N.D. Ind. 2013) (rejecting argument that RCRA § 6972(a)(1)(A) suit could be maintained on the basis of alleged continuing effects of past violations, and dismissing claim). 103 See e.g., Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149 (9th Cir. 1989); Gulf Coast Asphalt Co. L.L.C. v. Chevron U.S.A. Inc.., No. 09-0187-CG-M, 2009 U.S. Dist. LEXIS 73259, *7-*10 (S.D. Ala. 2009). 104 Brown, 598 F. Supp. 2d at 1201 (“Once a defendant is no longer an owner or operator of a polluting facility, it has ‘no control over the pollution source’ and would have no ability to ‘bring itself into complete compliance.’”) (quoting Friends of Sakonnet v. Dutra, 738 F. Supp. 623 (D.R.I. 1990)); see also N. Cal. River Watch v. Exxon Mobil Corp., No. C 10-0534, 2010 U.S. Dist. LEXIS 81681, *8-*15 (N.D. Cal. 2010) (dismissing claim of ongoing regulatory violation against former owner as outside reach of RCRA’s citizen suit provision because alleged violations were wholly in past, and discussing split in authority).

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B. However, the majority of decisions have held that a plaintiff may use RCRA’s citizen suit provision to enforce state regulations issued pursuant to a state program authorized under RCRA (which operates in lieu of federal regulations) because the state regulations have become effective pursuant to EPA’s RCRA authority to authorize state programs.106 In those cases, courts have typically dismissed without prejudice complaints alleging solely federal regulatory violations and allowed refiling with proper allegations of violations of the analogous state regulations. VII. Defenses Based on Lack of Imminent or Substantial Endangerment A. While courts have been liberal in interpreting the terms “imminent” and “substantial,” these terms can provide an effective defense. Courts have held that where alleged risk of harm is remote in time, speculative, or de minimis, the threshold for an imminent and substantial endangerment is not be met.107 B. For example, plaintiffs may fail to establish the requisite imminence by alleging wholly past endangerments.108 The U.S. Supreme Court has ruled that “[a]n endangerment can only be ‘imminent’ if it ‘threatens to occur immediately,’ and the reference to waste which ‘may present’ imminent harm quite clearly excludes waste that no longer presents such a danger.”109 C. Imminence may also be lacking where the endangerment is premised on speculative development plans or contingencies.110 D. In addition, where a plaintiff cannot establish an exposure pathway, courts have found no imminent and substantial endangerment (notwithstanding existence of contamination).111 For instance, a RCRA imminent and substantial endangerment claim was dismissed where, accepting as true plaintiff’s allegations that contaminant levels in groundwater exceeded state drinking water standards, the water was not currently a source of drinking water and therefore there was no endangerment.112 This type of defense may prove useful where municipal land use ordinances or deed restrictions prohibit use of certain groundwater for drinking water. E. Factors favoring finding of an imminent and substantial endangerment may include: documented failure of remediation to contain contamination (e.g., holes in lining of pits)113;

105 See, e.g., Acme Printing Ink Co. v. Menard, Inc., 870 F. Supp. 1465, 1476 n.1 (E.D. Wis. 1994) (finding that a plaintiff “may only sue for violations of the state regime and not for violations of the federal regime”); Dague v. City of Burlington, 732 F. Supp. 458 (D. Vt. 1989) (same). 106 See, e.g., Acme Printing, 881 F. Supp. at 1244 (finding state hazardous waste regulation is enforceable by RCRA citizen suit); Glazer v. American Ecology Envtl. Svc. Corp., 894 F. Supp. 1029, 1040 (E.D. Texas 1995) (permitting RCRA citizen suit for alleged violation of approved state hazardous waste program); Murray v. Bath Iron Works Corp., 867 F. Supp. 33, 43 (D. Me. 1994) (finding that citizen suit is “still available for violations of state authorized program”). 107 See, e.g., Maine People’s Alliance and Natural Resources Defense Council v. Mallinckrodt, Inc., 471 F.3d 277 (1st Cir. 2006). 108 See Price v. United State Navy, 39 F.3d 1011 (9th Cir. 1994) (dismissing where, after remediation was completed, tests showed no current endangerment). 109 Meghrig, 516 U.S. at 486. 110 See Price v. U.S. Navy, 39 F.3d 1011 (9th Cir. 1994) (finding no imminent and substantial endangerment, in part because plaintiff’s claimed endangerment was contingent on future destruction of house slab, which was unnecessary); Crandall c. City of Denver, 594 F.3d 1231 (10th Cir. 2010) (finding no imminent and substantial endangerment, in part because harm would occur only if defendants resumed activity (use of deicing fluid) and current remediation later proved ineffective). 111 See, e.g., Grace Christian Fellowship v KJG Invs. Inc., 2009 U.S. Dist. LEXIS 76954 (E.D. Wisc. Aug. 7, 2009) (denying injunctive relief under RCRA where plaintiff church failed to show evidence of an exposure pathway due to closure of church basement); Leister v. Black & Decker, 117 F.3d 1414 (4th Cir. 1997) (where filtration system reduced contaminants in well to below detectable limits, no serious threat of harm found). 112 Scotchtown Holdings LLC v. Goshen, No. 08-cv-4720, 2009 U.S. Dist. LEXIS 1656, *5-*10 (S.D.N.Y. 2009). 113 Interfaith, 399 F.3d at 261-62.

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evidence of human trespass (particularly children)114; explosive materials115; contaminants leaching to surface soils and water116; and, contaminants above applicable regulatory limits117. VIII. Attorneys’ Fees and Costs A. RCRA provides that a court “may” award reasonable fees “to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate.” 42 U.S.C. § 6972(e). The determination whether to award fees and what is a “reasonable fee” is within the discretion of the court. B. To qualify for a fee award, a plaintiff must “succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit . . . . This test has been characterized as a ‘generous formulation’ to get plaintiffs across the statutory threshold.”118 i. While courts have discretion to award fees, one Court of Appeals has gone further to note a “presumption in favor of awarding prevailing plaintiffs attorney’s fees.”119 ii. Nonetheless, “[t]he touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties….”. Thus, successes that are “purely technical or de minimis” should not result in fee awards.120 C. “For the defendant to prevail on its claim for attorneys’ fees, it must show that the plaintiffs’ claim “‘was frivolous, unreasonable, or groundless, or that the plaintiff[s] continued to litigate after it clearly became so.’”121 For example, a defendant was awarded fees (pursuant to Rule 11) where a plaintiff’s suit under § 6972(a)(1)(B) was dismissed for lack of standing based on no injury, and the plaintiff’s case was previously dismissed for lack of standing in a CERCLA action against the same defendant.122 However, cases reporting defendants’ recovery of attorneys’ fees are less frequent123 than decisions awarding attorney’s fees to plaintiffs. Despite the lack of a basis in the statutory language for establishing different burdens for plaintiffs and defendants to recover attorneys’ fees and costs, the courts have effectively created differential standards for prevailing on cost/fee motions. D. Catalyst theory i. Under the catalyst theory, a plaintiff who is not awarded relief by the court, but is the “impetus for ‘voluntary change in a defendant's conduct’ might be considered a prevailing party in fee-shifting statutes.”124 In a discrimination case under the FHAA and ADA, Buckhannon Bd. And Care Home, Inc. v. West Virginia Dep’t of Health

114 Id. at 262. 115 Parker v. Scrap Metal Processors, 386 F.3d 993 (11th Cir. 2004). 116 Cox, 256 F.3d 281. 117 Id. However, mere exceedance of federal or state “action” or “cleanup” levels is not necessarily sufficient to establish an imminent and substantial endangerment. See, e.g., H&H Holding, L.P. v. Chi Choul Lee, No. 12-5433, 2014 U.S. Dist. LEXIS 31543 (E.D. Penn. 2014) (holding evidence of PCE soil sampling results exceeding state standard by 17 times insufficient to raise genuine issue of material fact on RCRA imminent and substantial endangerment claim, “because the likelihood of any human contact with or endangerment from the PCE is minimal.”) 118 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). 119 Browder v. City of Moab, 427 F.3d 717, 721 (10th Cir. 2010) (remanding to district court for failure to provide basis of denial of fee award to plaintiff in RCRA citizen suit). 120 Tx. State Teachers’ Assn. v. Garland Independent School Dist., 489 U.S. 782, 782-83 (1989). 121 George v. Reisdorf Bros., 410 Fed. Appx. 382, 387 (2d Cir. 2011) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). 122 Pape v. Lake States Wood Preserving, 948 F. Supp. 697, 700-01 (W.D. Mich. 1995). 123 See, e.g., Compass Bank v. Walter C. Keller Distributor, Inc., No. 5:08-cv-00068 (S.D. Tex. Sept. 28, 2012) (order granting summary judgment and awarding fees to third-party defendant in RCRA citizen suit) (not reported). 124 United States v. Bd. of County Comm’rs of Hamilton, 2005 U.S. Dist. LEXIS 17663, *7 (S.D. Ohio Aug. 23, 2005) (quoting Payne v. Bd. of Educ., Cleveland City Schools, 88 F.3d 392, 397 (6th Cir.1996)).

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and Human Res., the U.S. Supreme Court rejected the catalyst theory to the extent that it would allow a party to recover attorneys’ fees without obtaining court- ordered or court-sanctioned relief.125 ii. Courts are spilt regarding the effect of Buckhannon on environmental fee-shifting statutes. The Ninth Circuit is the only federal appellate court to consider the catalyst theory under RCRA post-Buckhannon, and it expressly rejected use of that theory in RCRA suits.126

125 Buckhannon Bd. And Care Home, Inc. v. West Virginia Dep’t of Health and Human Res., 532 U.S. 598 (2001). 126 Kasza v. Whitman, 325 F.3d 1178, 1180 (9th Cir. 2003). But see Ailor v. City of Manardville, Tennessee, 368 F.3d 587, 601, n.6 (6th Cir. 2004) (noting the Buckhannon decision, and stating that “it is an open question whether the catalyst theory remains viable in the context of environmental statutes like the CWA that limit attorneys’ fees to a prevailing party or substantially prevailing party.”).