The Second Circuit Court of Appeals threw out two claims under RCRA for failure to specify the specific contaminants alleged to cause the complained-of harm in the Notice of Intent to Sue.
In Brod v. Omya Inc., No. 09-4551-cv (2d Cir. July 18, 2011), the Second Circuit affirmed the District Court of Vermont's ruling that the plaintiff failed to meet the notice requirements under RCRA § 7002(b), when the plaintiff failed to specify the specific contaminants from which it was alleging the defendant's liability in the Notice of Intent to Sue ("NOI").
Pursuant to RCRA § 7002(b), a neighborhood group, called Residents Concerned about Omya, and three independent residents, including Mr. Brod (collectively "RCO"), properly served an NOI, alleging that the local calcium carbonate mineral processing facility owner, Omya, violated RCRA's prohibition on unlawful open dumping of solid waste, RCRA § 4005, and that Omya's disposal practices presented an "imminent and substantial endangerment" to human health and the environment in violation of RCRA § 7002(a)(1)(B). The NOI listed 21 specific chemicals allegedly disposed of by Omya, and stated that "there have been reports that the waste piles may contain other hazardous substances dumped there in the past," and that "the wastes are contaminated with numerous chemicals, including hazardous chemicals listed under Subchapter III of RCRA, as well as pesticides registered under [FIFRA]."
After RCO timely filed suit against Omya in the District Court of Vermont, subsequent investigations indicated that AEEA (an organic base commonly used in the manufacturing of lube oil additives, fuel additives, chelating agents, surfactants and fabric softeners among other applications) and arsenic might also have been disposed of by Omya. RCO amended its pleadings to contain reference to the presence of AEEA and arsenic. However, Omya moved to dismiss all claims pertaining to AEEA and arsenic, arguing that RCO had failed to comply with the RCRA notice requirements because it failed to specify AEEA and arsenic as waste contaminants in its original NOI. The District Court granted Omya's motion and dismissed RCO's claims that related to AEEA and arsenic.
In affirming the lower court's decision to dismiss RCO's AEEA and arsenic claims, the Second Circuit noted that RCRA does not describe the required content of a NOI and that the Supreme Court has not decided the issue, but that the EPA has promulgated an applicable regulation, which states that notice of an alleged violation under RCRA must 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 a violation . . . ." See 40 C.F.R. § 254.3(a). The Court noted that "[w]ithout detailing what constitutes 'sufficient information,' we have held that the content of an NOI must serve the purpose of giving 'the appropriate governmental agencies an opportunity to act and the alleged violator an opportunity to comply.'" Brod, at *25 (quoting Dague v. City of Burlington, 935 F.2d 1343, 1354 (2d Cir. 1991)).
To be sure, the Second Circuit applied the rationale from a Clean Water Act ("CWA") case, Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir. 2001), to determine what constitutes sufficient notice in the NOI under RCRA. See Brod, at *32 (recognizing that the CWA and RCRA notice requirements are "analogous" and the legislative objectives underlying both are the same). Ultimately, the NOI "must identify with reasonable specificity each pollutant that the defendant is alleged to have discharged unlawfully." Catskill Mountains, 273 F.3d at 488. Hence, the statements in RCO's NOI that "the waste piles may contain other hazardous substances," and that "the wastes are contaminated with numerous chemicals, including hazardous chemicals listed under Subchapter III of RCRA," were insufficient to provide Omya (or the appropriate governmental agencies) with notice of potential AEEA and arsenic contamination.
The Court summarized: "RCO's failure to give notice of the specific pollutants now at issue circumvents the dual goals that the Supreme Court has said motivate the RCRA notice requirements: (1) allowing Government agencies to take responsibility for enforcing environmental regulations; and (2) giving the alleged violator an opportunity to bring itself into complete compliance with the Act." Brod, at *35-36 (citation omitted).
The practical take-away from Brod v. Omya, Inc. is not necessarily that the NOI must contain "reasonable specificity" with each pollutant that the defendant is alleged to have discharged unlawfully - that is nothing new; the take-away from this case is that RCO's suit was dismissed, even though RCO revised its pleadings to reflect the specific contaminants found, because RCO failed to give a revised NOI to Omya of the alleged unlawful discharges of these additional pollutants once found.
Even the Second Circuit pointed out that "[after a draft investigation report was published] nothing prevented RCO from then giving notice to Omya of a purported violation of RCRA for the discharge of that specific chemical [AEEA]. Likewise, RCO was free to give notice to Omya of alleged improper discharge of arsenic after RCO's experts and consultants discovered that arsenic was present to some degree in the groundwater on-site . . . ." Brod, at *36. In fact, the Second Circuit's holding seemed to encourage RCO to re-file its suit after giving proper notice in another NOI to Omya which included notice of the alleged discharges of AEEA and arsenic.
Therefore, as a practical matter in either bringing or defending RCRA citizen suit actions, if subsequent investigations uncover additional potential contaminates after the lawsuit has been filed, the plaintiff must serve upon the defendant a new NOI specifically containing reference to those newly-identified contaminants, or else risk having any claims regarding those contaminants thrown out of court. Once all the requirements of the NOI have been met, the plaintiff would then have the ability to make a motion to amend its complaint to include these newly-identified contaminants.
Taking the time to draft and serve an additional RCRA NOI when new contaminants are found - even if litigation regarding other contaminants is ongoing - could save time, money, and much heart-ache in the long run.