A recent decision out of the Northern District of Indiana found that a citizen suit brought under RCRA Section 7002(a)(1)(A) was unavailable for contamination that was caused by alleged historical violations of RCRA. In Browning v. FlexSteel Industries, Inc. (N.D. Ind. 2013), plaintiffs brought a RCRA citizen suit under RCRA Section 7002(a)(1)(A) which allows private parties to sue any person who is alleged to be in violation of RCRA to force compliance (or in this case, remediation of the contamination). Plaintiffs also sued under RCRA Section 7002(a)(1)(B) which allows private parties to sue any person who is, or has contributed to contamination that presents an imminent and substantial endangerment to human health or the environment.
Although Plaintiffs acknowledged that they could not bring a RCRA Section 7002(a)(1)(A) claim for "violations that are 'wholly past'", plaintiffs argued that the majority of district courts to have considered this issue had found that citizen suits should be allowed under RCRA Section 7002(a)(1)(A) to address the continuing effects of existing contamination that were caused by past violations of RCRA. The court acknowledged this "majority rule" but noted that neither the Seventh Circuit nor any other appellate court had yet adopted this "majority rule."
The court therefore turned for guidance to a United States Supreme Court case that had interpreted similar language in the Clean Water Act ("CWA"). In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.(S. Ct. 1987), the United States Supreme Court held that CWA citizen suit complaints were not available to address wholly past violations of the CWA. The court also considered a recent decision out of the Northern District of Illinois which rejected similar arguments that the continuing environmental effects of wholly past conduct could satisfy the RCRA Section 7002(a)(1)(A) requirement that there be a "continuing or intermittent violation." See Forest Park Nat'l Bank & Trust v. Ditchfield, (N.D. Ill. 2012).
Adopting the reasoning employed by both the Gwaltney and Ditchfield courts, the Indiana federal court held that RCRA Section 7002(a)(1)(A) was limited to current, ongoing RCRA violations and could not be relied upon to address contamination allegedly caused by historical RCRA violations. The court did note that plaintiffs were not without a remedy in that they could still pursue their RCRA "imminent and substantial" endangerment claims under Section 7002(a)(1)(B).