RCRA Litigation Strategies: Defeating Claims of 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.