The Second Circuit Court of Appeals has affirmed the dismissal of a RCRA citizen suit against Omya, Inc. for failure to meet RCRA’s notice requirements. Brod v. Omya, Inc., No. 09-4551 (2d Cir. 7/18/11). The complaint alleged that water contamination from a calcium carbonate mineral processing facility in Vermont posed an imminent and substantial endangerment to health or the environment. Later, while motions for summary judgment were pending, plaintiffs also alleged that defendant further endangered health and the environment by allowing its waste to seep into groundwater and contaminate hydrologically connected water resources with aminoethylethanolamine (AEEA). Plaintiffs further alleged during the litigation that defendant operated an illegal open dump because its solid waste contained AEEA at levels above federal standards.
In a 2008 decision, the district court dismissed the open dumping claim, ruling that AEEA was not present at a high enough level to result in liability. In its decision, the court ruled, however, that defendant was liable for creating an imminent and substantial endangerment based on the presence of AEEA in its waste and the risk of those levels spreading to groundwater and ultimately to drinking water. In 2009, the district court vacated that endangerment finding and granted defendant’s motion to dismiss all AEEA-related claims on the ground that plaintiff failed to provide defendant with adequate notice of the violation, as required by RCRA. According to the court, plaintiffs’ notice letter to defendant failed to identify AEEA as the contaminant of concern. Plaintiffs appealed to the Eighth Circuit, arguing that their notice letter, which alleged the release of contaminants from dumping processing waste into local water sources, was sufficient notice under RCRA.
The appeals court affirmed the district court, ruling that the notice was insufficient under RCRA because it did not identify AEEA as the contaminant of concern. According to the court, under RCRA’s notice provisions, each alleged contaminant must be identified.