Citizen Suit for RCRA Violation Does Not Apply to Past Owner/Operators, Federal Court Holds

A provision in the Resource Conservation and Recovery Act (“RCRA”) that authorizes citizen suits as a remedy for permit or regulatory violations does not extend to former owners or operators of facilities, a federal district court recently held. In La Plata County Board v. Brown Group Retail, Inc.,[1] a Colorado district court dismissed one of the plaintiff’s two RCRA claims against a former owner and operator of a facility, holding that a RCRA claim against an entity “alleged to be in violation” of RCRA is limited to “an owner or operator … who is ‘alleged to be in violation’ of the RCRA at the time the suit is brought.”[2] The district court explicitly rejected contrary precedent from a 1993 federal district court, and relied heavily on case law involving identical language in a Clean Water Act citizen suit provision. Although the plaintiff’s second RCRA claim alleging imminent and substantial endangerment survived the motion to dismiss, in addition to the plaintiff’s state law and CERCLA[3] claims, the decision, particularly if followed by other federal courts, will limit the reach of RCRA citizen suits against past owners and operators of regulated facilities.

Factual and Procedural Background

La Plata arose after contamination was found on property that the County of La Plata in Colorado (the “County”) acquired in 1983 and currently uses to operate a detention center. The previous owner of the property, Brown Group Retail, Inc. (“Brown Group”), operated a rifle scope manufacturing facility on the property between 1975 and 1983. Brown Group used solvents at the facility, which spilled onto the floor and were flushed down drains, eventually contaminating the soil and groundwater beneath and surrounding the facility. Brown Group took no measures to abate or contain the contamination, which eventually migrated into potable groundwater and surface water. According to the County, vapors from the solvents have also escaped into the detention center and endangered the health of the inmates. The County alleged two claims against Brown Group under RCRA’s citizen suit provision, in addition to claims under state law and CERCLA. Brown Group filed a motion to dismiss most of the County’s claims.

The County brought its first RCRA claim under § 7002(a)(1)(A),[4] which authorizes citizen suits against any person “who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to” RCRA. Brown Group argued that, because it had neither owned nor operated a facility on the property since 1983, its activities constituted “wholly past violations,” and the County could not properly assert that Brown Group was “alleged to be in violation of RCRA” at the time the suit was filed.[5] The County argued that past actions constitute “continuous violations whenever the pollution has not been remediated.”[6]

Contrary Ruling from Federal District Court Rejected in Favor of Reasoning from Clean Water Act Decisions

The district court began its analysis of RCRA § 7002(a)(1)(A) by looking to the United States Supreme Court’s decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,[7] which involved identical language in the Clean Water Act’s citizen suit provision. In Gwaltney, the Court stated that “the most natural reading” of the phrase “‘to be in violation’ is a requirement that citizen-plaintiffs allege a state of either continuous or intermittent violation – that is, a reasonable likelihood” that a violation will continue in the future.[8] The Court also noted that “Congress could have phrased its requirement in language that looked to the past (‘to have violated’), but it did not choose this readily available option.”[9] Clean Water Act decisions subsequent to Gwaltney have further distinguished between “wholly past violations,” which do not give rise to a Clean Water Act citizen suit, and “continuous and intermittent” violations, which do.[10] According to the La Plata court, these decisions have only found “continuous or intermittent” violations when the plaintiffs alleged “contemporaneous discharges” of pollutants, as opposed to circumstances where “all that remained was the migration, decomposition, or diffusion of the pollutants.”[11]

Although the County acknowledged that RCRA § 7002(a)(1)(A) is “primarily forward looking,” it argued that most courts “have found continuing violations for substantive violations of the RCRA when the environmental harms caused by the violations are curable, even when the affirmative act that initiates the violation occurred on a single day.”[12] The district court rejected this argument, explaining that the decisions cited by the County involved different RCRA provisions that explicitly included past actions, which bolstered the argument that Congress overtly excluded wholly past actors from § 7002(a)(1)(A). The district court also distinguished the facts in those cases, where the defendants continued to conduct activities that caused contamination and refused to take measures to remedy ongoing sources of contamination.

The primary case that the County relied on, City of Toledo v. Beazer Materials and Services, Inc.,[13] held that a claim under § 7002(a)(1)(A) existed against a prior owner “as long as no proper disposal procedures are put into effect or as long as the waste has not been cleaned up and the environmental effects remain remediable.” The La Plata court declined to follow Beazer, stating that the case was “wrongly decided,”[14] because the reasoning in that decision incorrectly applied prior case law, and failed to acknowledge the difference between defendants that are current owner/operators and entirely past owner/operators.

Instead, the district court adopted the reasoning from a decision that neither party cited, Friends of Sakonnet v. Dutra,[15] which involved the Clean Water Act’s citizen suit provision. That case held that the phrase “any person … who is alleged to be in violation [is] clearly directed to a present violation by the person against who the citizen suit is brought.”[16] According to the La Plata court, this reading of the citizen suit provisions in RCRA and the Clean Water Act comports with the purpose of the notice provisions in each statute, i.e., to allow the alleged violation to be cured before a citizen suit is brought. The key holding of the case is that “a cause of action under Section [7002](a)(1)(A) can only be brought against an owner or operator of a polluting property who is ‘alleged to be in violation’ of the RCRA at the time the suit is brought.”[17] Because Brown Group did not own the property when the suit was brought and its alleged RCRA violations ceased in 1983, the district court dismissed the County’s RCRA cause of action under this provision. In doing so, the district court noted that, while the facts alleged showed that the County, “as an owner and operator of an alleged hazardous waste site, may ‘be in violation of a permit, standard … or order which has become effective pursuant to’ RCRA,” the County had not alleged facts showing that Brown Group was “similarly in violation.”[18]

For more information on this decision, please contact Meline MacCurdy.