By Andrew H. Perellis

It’s an all too familiar scenario. You learn that your drinking water supply has been contaminated by a defunct manufacturing operation on adjacent property.

In response, you file a lawsuit involving RCRA’s citizen suit provisions to allege that the former owner or operator violated RCRA’s substantive requirements by disposing of hazardous waste without a permit. 42 U.S.C. §6972(a)(1)(A). You also assert a claim that the defendant contributed to the past disposal of a hazardous waste that is presenting an imminent and substantial endangerment. 42 U.S.C. §6972(a)(1)(B).

There is ample but divided authority holding that past violations of RCRA’s substantive requirements can nonetheless support a citizen suit claim under 42 U.S.C. §6972(a)(1)(A) where there are ongoing effects (continued pollution) of the past violation. The recent opinion by Judge Jon E. Deguilio in Browing v. Flexsteel Industries, Inc., No. 11-CV-480 (N.D. Ind., 3/25/2013) provides a disciplined analysis of this issue but concludes that only continuing violations, not the ongoing effects of past violations, are the proper subject of 42 U.S.C. §6972(a)(1)(A).

The ruling came at the pleading stage; here, the plaintiffs did not allege that the former owners or operators continued to violate RCRA so the “in violation of RCRA” count was dismissed. Significantly, the court allowed the claim under 42 U.S.C. §6972(a)(1)(B) to continue, noting that the “imminent and substantial endangerment” provision is specifically designed to reach claims of continued pollution arising from past RCRA violation. The court also distinguished claims based on RCRA’s  substantive Underground Storage Tank provisions because those regulations deem  a person to be the “owner or operator” of the tank even after the property itself had been sold – thus imposing present requirements and duties upon that person.

You might ask, why does it matter if the claim is brought under 42 U.S.C. §6972(a)(1)(A) or 42 U.S.C. §6972(a)(1)(B). It is important because the limitations on when such actions may be brought differ. For a substantive RCRA violation, a citizen cannot bring suit if EPA or the State has commenced and is diligently prosecuting a civil or criminal action to require compliance with the substantive RCRA provision. For an “imminent and substantial endangerment” suit, a citizen suit cannot proceed where EPA or the State  is engaged in action to remediate the site conditions, either under RCRA or CERCLA.

The moral of this story is that citizen suits require careful consideration both by a plaintiff in shaping its complaint and by a defendant in determining the viability of any asserted claims.