The Second Circuit Court of Appeals affirmed dismissal of a RCRA citizens’ suit on the grounds that plaintiffs did not set forth the identity of the specific chemicals released by the defendant in plaintiffs’ notice of intent to sue. Brod v. Omya, --- F.3d ---, 2011 WL 2750916 (C.A. 2, July 18, 2011 (Vt.)). The district court had entered summary judgment that the defendant Omya was liable because its disposal created an imminent and substantial endangerment.1 At the remedy phase of the trial, the district court reversed its prior decision finding Omya liable, and held that the plaintiffs’ RCRA citizen suit notice served over ninety days prior to the filing of the lawsuit was deficient for not alleging the specific chemicals that caused the endangerment.2 Therefore, the suit was dismissed.
The Second Circuit affirmed the dismissal by the district court, and found that EPA’s regulation requiring that RCRA citizen suit notices provide “sufficient information”3 concerning the violation had not been met. The court discussed the purpose of the citizen suit notice provision, namely, to provide sufficient information to allow correction of the problem through government enforcement, and to avoid an excessive number of citizen suits.4
Even though this decision constituted a dismissal with prejudice, the Second Circuit, in dicta, offered its skepticism of the fairness of EPA’s regulation requiring this degree of specificity,5 and then highlighted the path for these plaintiffs to correct this deficiency in a new lawsuit:
“Of course, the dismissal of this action will not prohibit [plaintiffs] from again giving notice to Omya and filing its suit in compliance with RCRA’s notice and delay requirements upon future discovery of potential violations of the federal environmental laws.”6
142 U.S.C. § 6972(a)(1)(B): “may present an imminent and substantial endangerment to health or the environment.” Brod v. Omya, --- F.3d ---, 2011 WL 2750916, at *4 (C.A. 2 (Vt.)).
2Brod v. Omya, --- F.3d ---, 2011 WL 2750916, at *6 (C.A. 2 (Vt.)).
340 C.F.R. § 254.3; Brod v. Omya, --- F.3d ---, 2011 WL 2750916, at *8 (C.A. 2 (Vt.)).
4Brod v. Omya, --- F.3d ---, 2011 WL 2750916, at **8-11 (C.A. 2 (Vt.)). The court relied on similar notice of intent to sue requirements of the Clean Water Act.
5Brod v. Omya, --- F.3d ---, 2011 WL 2750916, at *12 (C.A. 2 (Vt.)(“Whether the regulation [requiring sufficient information] is wise is not a question entrusted to the courts.”).
6Brod v. Omya, --- F.3d ---, 2011 WL 2750916, at *12 (C.A. 2 (Vt.)).