RCRA Liability for Property Owners, Operators and Managers Minimizing Risks Under the Resource Conservation and presents Minimizing Risks Under the Resource Conservation and Recovery Act and Ensuring Indemnification presents A Live 90-Minute Teleconference/Webinar with Interactive Q&A Today's panel features: Steven G. Jones, Partner, Marten Law Group, Seattle Robert W. Lawrence, Partner, Davis Graham & Stubbs, Denver Thursday, January 21, 2010 The conference begins at: 1 pm Eastern 12 pm Central 11 am Mountain 10 am Pacific CLICK ON EACH FILE IN THE LEFT HAND COLUMN TO SEE INDIVIDUAL PRESENTATIONS. You can access the audio portion of the conference on the telephone or by using your computer's speakers. Please refer to the dial in/ log in instructions emailed to registrations. If no column is present: click Bookmarks or Pages on the left side of the window. If no icons are present: Click V iew, select N avigational Panels, and chose either Bookmarks or Pages. If you need assistance or to register for the audio portion, please call Strafford customer service at 800-926-7926 ext. 10
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RCRA Liability for Property Owners, Operators and Managers
Minimizing Risks Under the Resource Conservation andpresents Minimizing Risks Under the Resource Conservation and Recovery Act and Ensuring Indemnification
presents
A Live 90-Minute Teleconference/Webinar with Interactive Q&A
Today's panel features:Steven G. Jones, Partner, Marten Law Group, Seattle
Robert W. Lawrence, Partner, Davis Graham & Stubbs, Denver
Thursday, January 21, 2010
The conference begins at:1 pm Easternp12 pm Central
11 am Mountain10 am Pacific
CLICK ON EACH FILE IN THE LEFT HAND COLUMN TO SEE INDIVIDUAL PRESENTATIONS.
You can access the audio portion of the conference on the telephone or by using your computer's speakers.Please refer to the dial in/ log in instructions emailed to registrations.
If no column is present: click Bookmarks or Pages on the left side of the window.
If no icons are present: Click View, select Navigational Panels, and chose either Bookmarks or Pages.
If you need assistance or to register for the audio portion, please call Strafford customer service at 800-926-7926 ext. 10
For CLE purposes, please let us know how many people are listening at your location by
• closing the notification box • and typing in the chat box your
company name and the number of attendees.
• Then click the blue icon beside the box to send.
RCRA Liability for PropertyRCRA Liability for PropertyOwners, Operators and Managers
R b t L
, p g
Robert Lawrence Davis Graham & Stubbs
Steven Jones Marten Law
Resource Conservation and Recovery Act (“RCRA”)
• RCRA 42 U S C 6901 was enacted in 1976RCRA, 42 U.S.C. 6901, was enacted in 1976, amended in 1984, 1986
• “Cradle-to-grave” system for tracking andCradle to grave system for tracking and managing hazardous wastes
• RCRA regulates the generation, transportation, g g , p ,treatment, storage, and disposal of hazardous wastes
2
What does RCRA Regulate?
Solid Wastes:
“[A]ny garbage, refuse, sludge . . . and other discarded material, including solid, liquid semisolid or contained gaseousliquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural
foperations, and from community activities . . . .”
RCRA § 1004(27)RCRA § 1004(27)
3
What does RCRA Regulate?What does RCRA Regulate?(cont’d)
That are Hazardous:• That are Hazardous:– “Listed” Hazardous Wastes
• 40 C F R § 261 subpart D• 40 C.F.R. § 261 subpart D – “Characteristic” Wastes
• Ignitability, Corrosivity, g y, y,Reactivity, Toxicity
• 40 C.F.R. § 261 subpart C
4
How does RCRA Regulate?
• RCRA imposes requirements on persons i d i h h dassociated with hazardous wastes:
– Generators• RCRA § 3002RCRA § 3002
– Transporters• RCRA § 3003
– Owners and Operators of Treatment, Storage, and Disposal Facilities• RCRA §§ 3004 3005• RCRA §§ 3004, 3005
5
How is RCRA Enforced?How is RCRA Enforced?
• Environmental Protection Agency may sue to– Gather information
• § 3007Ad i i t ti li d d j di i l– Administrative compliance orders and judicial injunctions • § 3008§ 3008
– Suits to abate imminent and substantial endangerment • § 7003
6
How is RCRA Enforced?How is RCRA Enforced?(cont’d)
C i i l f t• Criminal enforcement– § 3008(d)(knowing transport of haz. waste to facility without
a permit and knowing treatment, storage or disposal of haz. waste w/o permit or in knowing violation of permit.
• RCRA § 7002(a)(1)(A)– Suit against a person who is “alleged to be in violation of”– Suit against a person who is alleged to be in violation of – a RCRA permit, standard, regulation, condition, requirement,
prohibition, or order • RCRA § 7002(a)(1)(B)• RCRA § 7002(a)(1)(B)
– Suit against past or present owner/operator of TSD facility, transporter or generator
– who has “contributed” or who is “contributing to”– who has contributed or who is contributing to – handling, storage, treatment, transportation, or disposal– Waste problem at a site which may present an “imminent and
substantial endangerment” to health or the environmentsubstantial endangerment to health or the environment
8
DEFENSES TO RCRA CITIZEN SUITS
• Failure to provide proper notice60 d f ( )(1)(A) “ i l ti ” iti it– 60 days for (a)(1)(A) “violation” citizen suit
– 90 days for (a)(1)(B) “imm. and subst. endangerment” suit
• Diligent prosecution g p– “Violation” suit: civil/criminal action to require compliance– “Endangerment” suit: action under RCRA 7003 or CERCLA
106 (including court and administrative orders); or engaged106 (including court and administrative orders); or engaged in removal action under CERCLA 104; or engaged in RI/FS and diligently proceeding with remediation.
• Defenses to underlying substantive claims• Defenses to underlying substantive claims
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Remedies for RCRA Citizen Suits
• Injunctive Relief Only:– Unlike CERCLA, RCRA § 7002(a) does not allow a , § ( )
party to recover cleanup costs. See Meghrig v. KFC Western, Inc., 516 U.S. 479 (1996)
• However, the prevailing party may recover its attorney’s fees and costs under § 7003(e)
10
Conflicting views of operator liability under RCRAliability under RCRA
• Current conflict regarding liabilityCurrent conflict regarding liability of former operators– Scarlett & Associates, Inc. v. Briarcliff a & o a , a
• PCE plume continuously migrating and expanding i l id 1990 i h i lsince early to mid 1990s with ongoing releases
• Faison sent letter to dry cleaner on EPA’s reporting requirements and followed uprequirements and followed up
• No dispute that the PCE had not been cleaned up
• Conclusion – dispute regarding whether Faison was p g gan operator under RCRA “notwithstanding the fact that Faison ceased its involvement at the Shopping Center on or about September 1, 1997.”
15
La Plata CountyLa Plata CountyBackground Facts
• La Plata County alleged that Defendant Brown Retail’s predecessor operated a lens manufacturingRetail s predecessor operated a lens manufacturing plant on property beginning in 1975. Brown Retail’s predecessor ceased operating in 1979; property l d t Pl f 1979 1982leased to Plummer from 1979-1982.
• County purchased property in 1983 and converted property into jail. County is current owner.property into jail. County is current owner.
• County alleged spills and leaks of solvents during Brown Retail’s predecessor’s operations.
• No Federal or state cleanup orders or actions.16
La Plata CountyLa Plata CountyClaims asserted by plaintiff
• Plaintiff County asserted RCRA citizens suit “violation” claim and “imminent and substantial endangerment” gclaim; CERCLA cost recovery claims; unjust enrichment; negligence; negligence per se; and abnormally dangerous activityabnormally dangerous activity. – Court dismissed citizen suit “violation”, unjust enrichment,
negligence per se, and abn. dangerous activity claims.
• Plaintiff notice letter indicated span of alleged RCRA violation from November 19, 1980 to date when County purchased property.y p p p y
17
La Plata CountyLa Plata CountyCourt’s Ruling on RCRA Claim
• Court held that cause of action under (a)(1)(A) can only be brought against an owner/operator ofonly be brought against an owner/operator of polluting property who is “alleged to be in violation” of RCRA. – Because Brown Retail was not current owner/operator, and
“polluting acts indisputably ceased no later than than the date in 1983 when plaintiff purchased the property”, Brown was not alleged to be in violation and Court dismissed claim.
– Plaintiff County is the current owner operator.
18
La Plata CountyLa Plata CountyCourt’s Reasoning
• Relied upon Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 58-64 (1987) - Brown is not “alleged to be in violation” because actions wholly past. – Plaintiff argued that wholly past acts can be “continuous
violations” when pollution has not been remediated.• Court distinguished other non-(a)(1)(A) RCRA cases. • Disagreed with City of Toledo v. Beazer Materials, 833 F.Supp.
646, 656 (N.D. Ohio 1993), because court relied on case in , ( ),which defendant was current owner/operator.
• Found CWA case, Friends of Sakonnet v. Dutra, 838 F.Supp. 623 (D.R.I. 1990) persuasive - “clearly directed to a present ( ) p y pviolation by the person against who the citizen suit is brought.”
19
Best Practices to Minimize RCRA Liability
• Compliance audits
• Prospective acquisitions – conduct all appropriate• Prospective acquisitions – conduct all appropriate inquiry prior to acquisition; take reasonable steps following acquisition
C t t l l ti• Contractual solutions – Representations and warranties
“RCRA regulates how wastes should be managed to avoidRCRA regulates how wastes should be managed to avoidpotential threats to human health and the environment.CERCLA, on the other hand, comes into play whenmismanagement occurs or has occurred (i e when theremismanagement occurs or has occurred (i.e., when therehas been a release or a substantial threat of a release inthe environment of a hazardous substance or of apollutant or contaminant that presents an imminent andsubstantial threat to human health).” EPA RCRA Orientation Manual.Manual.
21
Differences Between RCRA and CERCLA(cont.)
• Funding• CERCLA hazardous substances versus RCRA solid/hazardousCERCLA hazardous substances versus RCRA solid/hazardous
waste• Past owner/operators• Response cost recovery• Response cost recovery• Injunctive relief • Liability threshholds• ARARs• Off-site Disposal• Implementation of cleanup (owner/operator v. PRPs)
22
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 08-cv-00855-LTB-KMT
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LA PLATA,COLORADO,
Plaintiff,
v.
BROWN GROUP RETAIL, INC.,PLUMMER PRECISION OPTICS CO.,BLUE JAUNTE COMPANY, INC., andPLUMMER PRECISION OPTICS WESTERN DIVISION, INC.,
In Gache, however—as in Power Engineering—the defendant was the current owner and
operator of the contaminated property. See Gache, 813 F. Supp. at 1039–40. To the extent the
analysis in Gache could be extended to a former owner or operator, the subsequent opinion of
the Second Circuit—which is controlling on the Southern District of New York—in Connecticut
Coastal Fishermen’s Association clarified that when the owner or operator alleged to be in
violation of RCRA ceased operations before the suit was filed, any violations were “wholly past
violations” that do not give rise to suit under Section 6972(a)(1)(A). See Connecticut Coastal
Fishermen’s Ass’n, 989 F.2d at 1313, 1315. The remaining cases cited in Beazer Materials
likewise concern ongoing violations by an alleged current owner or operator and do not inform
my analysis here. See, e.g., Fallowfield Dev. Corp. v. Strunk, Civ. A. No. 89-8644, 1990 WL
52745 (E.D. Penn. Apr. 23, 1990); North Carolina Wildlife Fed’n v. Woodbury, No. 87-584-
CIV-5, 1989 WL 106517 (E.D.N.C. Apr. 25, 1989).
The other cases cited by Plaintiff are also unpersuasive on the question whether a polluter
who no longer owns or operates the pollution site may still be subject to suit under Section
6972(a)(1)(A). For example, Raymond K. Hoxsie Real Estate Trust v. Exxon Educational
Foundation based its conclusion on the fact that the defendant was the owner of the underground
storage tank system at issue, even though no longer an owner of the overlaying property. See
Raymond K. Hoxsie, 81 F. Supp. 2d 359, 364–65 (D.R.I. 2000). Similarly, in Cornerstone
Realty, Inc. v. Dresser Rand Co., the defendant was the current owner and operator of the
contaminated site. See Cornerstone Realty, 993 F. Supp. 107, 117 (D. Conn. 1998). Another
Case 1:08-cv-00855-LTB-KMT Document 71 Filed 02/18/2009 Page 20 of 25
21
case relied upon by Plaintiff, Acme Printing Ink Co. v. Menard, Inc.—while facially concerning
Section 6972(a)(1)(A)—based its holding on the plaintiff’s allegation that the defendants
“contributed to the handling, transportation or disposal of solid or hazardous waste, which has
created and presents an imminent or substantial endangerment to the public health or the
environment.” See Acme Printing, 812 F. Supp. 1498, 1512 (E.D. Wis. 1992). This language
indicates the claim was actually alleged under Section 6972(a)(1)(B), which allows suit against
any person who “contributed . . . to the past or present handling, storage, treatment,
transportation, or disposal of any solid or hazardous waste which may present an imminent and
substantial endangerment to health or the environment.”
While not cited by either party—perhaps because it addresses the identical language of
the Clean Water Act, rather than RCRA—the court’s discussion in Friends of Sakonnet v. Dutra
is well-reasoned and applicable to the question presented here. See Friends of Sakonnet, 738 F.
Supp. 623 (D.R.I. 1990). Friends of Sakonnet first restated the imprecise holding of Gwaltney
that the “to be in violation” language “does not confer jurisdiction in citizens’ suits for wholly
past violations.” See Friends of Sakonnet, 738 F. Supp. at 632. The court then noted “that
holding was referring to the [alleged] violation of the Act being in the past.” Id. In Friends of
Sakonnet, however—as in this case:
the [alleged] violation of the Act has been continuing and was occurring when thesuits . . . were filed. It is only a violator, not the violation, that can be said to bein the past. The distinction is not merely semantic. In the Gwaltney decision, nofurther polluting . . . [was] taking place because the violation ha[d] ceased; thepurpose of the Act ha[d] been achieved. In the present Sakonnet situation, thepolluting continues, although the actor polluting has changed.
Id. (emphasis in original). Accordingly, “[t]he question in the Sakonnet River situation is
whether a person who has violated the Clean Water Act may avoid liability by relinquishing
Case 1:08-cv-00855-LTB-KMT Document 71 Filed 02/18/2009 Page 21 of 25
22
ownership of a polluting source although the violation continues.” Id.
The Friends of Sakonnet court relied on the notice provisions of the Clean Water
Act—which track the notice provisions of RCRA—and the Supreme Court’s conclusion that
“the harm sought to be addressed by the citizen suit lies in the present or the future, not the past.”
See Gwaltney, 484 U.S. at 59; Friends of Sakonnet, 738 F. Supp. at 633. As noted by the
Supreme Court in Hallstrom, the legislative history of the RCRA—like that of the Clean Water
Act—“indicates an intent to strike a balance between encouraging citizen enforcement of
environmental regulations and avoiding burdening the federal courts with excessive numbers of
citizen suits.” Hallstrom, 493 U.S. at 29. Notice gives the Government the opportunity to
compel compliance before suit and further gives the defendant the opportunity to bring itself into