What do you do when a property owner sues you for contaminating his or her land, yet refuses to allow you access to clean up the contamination? Often you can work with the environmental agency to persuade the owner to allow the cleanup, but what if that option is closed? In Carlson v. Ameren Corporation, No. 10-01230 (C.D. Ill. Jan. 21, 2011), the defendant responded by filing a counterclaim against the owner pursuant to RCRA's citizen suit provision, 42 U.S.C. § 6972(a)(1)(B).

The district court’s analysis of the counterclaim was straightforward. The owner previously alleged that the contamination posed an imminent and substantial endangerment to health and the environment. The defendant bolstered that argument by claiming that the owner “contributed” to the hazardous waste condition because the owner was aware that contaminants were leaching into the land yet refused to allow the defendant access to clean up the property. The defendant argued that the owner was thus actively permitting the hazardous material to further degrade the land.

Relying on RCRA's definition of "storage" as the "temporary placement of waste," the district court denied the owner's motion to dismiss the counterclaim finding that "as a result, the [owner] may be said to be actively contributing to the condition of the property." The Court further reasoned that it was inappropriate to strike the counterclaim because "there were allegations that the [owner] was acting for personal gain and ... attempting to use the federal environmental laws for their own financial advantage." So by filing the counterclaim, the defendant forced the owner to reconsider her refusal to allow the offer to clean up the contamination because a judgment on the counterclaim would offset the owner’s damages.