RCRA Litigation Strategies: Defeating Claims of Substantial Endangerment

Defending RCRA Citizen Suits by Proving Plaintiff Failed to Demonstrate Imminent Harm

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, August 25, 2015

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to environmental counsel for prevailing in or successfully defeating a Resource Conservation and Recovery Act (RCRA) citizen suit based on failure to demonstrate imminent harm. The panel will discuss common pitfalls and offer strategies for defeating claims of imminent and substantial endangerment.

Description

While the 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 §7002 provides a cause of action based on imminent and substantial endangerment to health or the environment.

A federal district court in Ohio recently ruled that because air emission could become solid waste, RCRA’s imminent and substantial endangerment authority can be used to seek relief for air emissions contamination [The Little Hocking Water Ass’n v. E.I. du Pont de Nemours & Co. (S.D. Ohio 2015)]. This comes on the heels of a federal district court in Washington ruling that manure from a farm’s livestock is a solid waste under RCRA and subject to the substantial endangerment provision [Community Association for Restoration of the Environment v. Cow Palace (E.D. Wash. 2015)].

RCRA challenges plaintiffs to demonstrate the presence of 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 citizen suits based on failure to demonstrate imminent harm and highlights common pitfalls. The panel will outline approaches for defeating claims of imminent and substantial endangerment.

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Outline

  1. RCRA §7002
    1. Why plaintiffs use RCRA §7002
    2. Implications of using RCRA §7002
  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 issues:

  • 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?

Faculty

John McGahren
John McGahren

Partner
Morgan Lewis & Bockius

Mr. McGahren counsels clients on litigation, enforcement, and transactional matters. He prosecutes and defends citizen...  |  Read More

Steinberg, Michael
Michael W. Steinberg

Senior Counsel
Morgan Lewis & Bockius

Mr. Steinberg focuses on environmental law matters, especially litigation and counseling involving hazardous waste...  |  Read More

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