RCRA Litigation and the Substantial Endangerment Requirement

Description

While the Resource Conservation and Recovery Act (RCRA) provides private parties a strong and cost-effective tool to determine responsibility for hazardous waste cleanup, it also offers defense counsel opportunities to defeat citizen suits.

RCRA Sec. 7002 provides a cause of action based on imminent and substantial endangerment to health or the environment. This requirement challenges plaintiffs to demonstrate the presence of such harm and calls upon defendants to show that plaintiffs failed to establish that such harm is imminent.

Defendants facing RCRA citizen suits must understand the circumstances under which they can effectively demonstrate a plaintiff has failed to prove imminent and substantial endangerment.

Listen as our authoritative panel of environmental counsel examines what has worked to prevail in or defeat a citizen suit based on failure to demonstrate imminent harm, highlights common pitfalls, and outlines approaches for defeating claims of imminent and substantial endangerment.

Outline

1. RCRA 7002
   1. History and elements
   2. Why plaintiffs use RCRA 7002 and the implications of using it
2. Demonstrating imminence requirement
   1. Risk threatens to occur immediately
   2. More than speculation
   3. Court treatment
3. Common pitfalls
4. Best practices for defeating claims based on failure to show imminent harm
   1. Harm occurred in past
   2. Speculative nature of the alleged harm
   3. Presence of contamination alone is not enough
5. Litigation Issues
   1. Standing
   2. Summary judgment considerations
   3. Use of fact and expert witnesses

Benefits

The panel will review these and other key questions:

• What common pitfalls do defendants encounter when faced with RCRA citizen suits?
• When can a claim be defeated based wholly on past harm or the speculative nature of the alleged harm?
• What steps should counsel take to defeat claims of imminent and substantial endangerment?

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