Section 6972(a)(1)(A) provides that any person may commence a civil action against any person who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order (the “A” claim). As a general rule, to establish an “A” claim, a plaintiff must:
- How a violation of either a state or federal law that became effective pursuant to RCRA;
- Show that the violation is a continuing one; and
- Establish that neither the EPA nor the state has commenced a civil or criminal action in court concerning the violation.
Section 6972(a)(1)(B) allows an action against any person who has contributed or is contributing 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 (the “B” claim). In order to prevail under the “B” claim, a plaintiff must establish:
- The defendant is a person, including, but not limited to, one who was or is a generator of solid or hazardous waste, or one who was or is an owner or operator of a solid or hazardous waste treatment, storage, or disposal facility;
- The defendant has contributed to, or is contributing to, the handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and
- The solid or hazardous waste may present an imminent and substantial endangerment to human health or the environment.
Notably, the “B” claim only provides for injunctive relief based on either past or present conduct. The continued presence of waste previously disposed of is actionable if it presents an imminent and substantial endangerment to health or the environment. However, waste that no longer presents a threat is not actionable under this provision of RCRA.
An endangerment is “imminent” if it “threatens to occur immediately.” Imminence applies to “the nature of the threat rather than identification of the time when the endangerment initially arose.
The “B” claim, therefore, may be used for events which took place at some time in the past but which continue to present a threat to the public health or the environment.” An endangerment is “substantial” if it is serious. The key determination is whether conditions, at the time suit was filed, posed an imminent danger to health or the environment. However, if the imminent and substantial endangerment is resolved after a lawsuit is filed, a defendant could argue that the “B” claim is moot as injunctive relief is no longer an option.
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