Are citizen suits asserted in pollution lawsuits?

Yes.  I represent both plaintiffs and defendants throughout the United States in lawsuits in which citizen suits have been asserted.  In addition to “cost-recovery” claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or a state equivalent, for instance under the Texas Solid Waste Disposal Act (“SWDA”), plaintiffs sometimes also assert citizen suits under several federal environmental statutes (e.g. “RCRA”) as “private attorney generals” which entitles them to statutory penalties, injunctive relief as well as attorney’s fees.  

RCRA is essentially a codification of common law public nuisance remedies and, therefore, incorporates the legal theories used for centuries to assess liability for creating a public nuisance (including the theories of tort, negligence, and strict liability) and to determine the appropriate remedies.

RCRA contains two citizen suit provisions which permit a party to file suit on behalf of the federal government as “private attorney generals” in order to enforce its provisions.  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. 

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 continued presence of waste previously disposed of is actionable if it presents an imminent and substantial endangerment to health or the environment.   Typically, contaminants present above state action levels meet this standard and therefore this claim is an option in pollution lawsuits.

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