Brod v. Omya

Jul 18: In the U.S. Court of Appeals, Second Circuit, Case No. 09-4551. Appealed from the United States District Court for the District of Vermont. Appealed from: (1) The district court vacated, after a remedy hearing, so much of a summary judgment as held defendants liable for creating an "imminent and substantial endangerment" as set forth in the Resource Conservation and Recovery Act of 1976 (RCRA) due to the presence of aminoethylethanolamine (AEEA) in defendants' waste; and, (2) so much of a summary judgment as granted dismissal of plaintiffs' open dumping claim brought under the provisions of RCRA; the District Court (i) determined that, based on, inter alia, subsequent testing and expert testimony presented at the remedy hearing, the potential harm posed by AEEA did not in fact constitute a "serious endangerment" and thus no remedy was warranted; (ii) granted defendants' motion to dismiss all claims related to AEEA because plaintiffs had failed to satisfy the citizen suit notice requirements of RCRA; and (iii) found that arsenic was not present at a level high enough to subject defendants to liability under RCRA. The Appeals Court affirmed the district court decision.

 

    The District Court (1) determined that, based on, inter alia, subsequent testing and expert testimony presented at the remedy hearing, the potential harm posed by AEEA did not in fact constitute a "serious endangerment," and thus no remedy was warranted; and (2) granted Omya, Inc. and Omya Industries, Inc. (collectively, Omya) motion to dismiss all claims related to AEEA because plaintiffs had failed to satisfy the citizen suit notice requirements of RCRA.

 

    The District Court dismissed Residents Concerned about Omya (collectively, the plaintiffs or RCO), open dumping claim, the court having found that arsenic was not present at a level high enough to subject Omya to liability under RCRA. In its complaint, which raised two claims, RCO alleged that Omya's waste disposal practices violated RCRA. RCO first claimed 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. RCO 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 U.S. EPA.

 

    The Appeals Court concluded, "Because we determine that, in a case of this nature, a proper NOI [notice of intent to sue] must specify each alleged containment, we need not reach RCO's other claims. In accordance with the foregoing, the judgment is affirmed." However, the Appeals court also said, ". . .the plaintiffs' failure to specify arsenic in their NOI supports the District Court's dismissal of the endangerment and the open dumping claims. Of course, the dismissal of this action will not prohibit RCO from again giving notice to Omya and filing its suit in compliance with RCRA's notice and delay requirements upon future discovery of potential violations of the federal environmental laws."

 

    Access the complete opinion (click here). [*Solid, *Haz, #CA2]