In Hackensack Riverkeeper, Inc. v. Delaware Ostego Corp., 450 F. Supp. 2d 467 (D.N.J. 2006), the court held that a citizen suit was not barred by the agency-diligent-prosecution exception to citizen suits because the agency’s action was not grounded on RCRA. But the court dismissed the citizen suit without prejudice because the citizen suit was based on an alleged violation of a section of RCRA not enforceable via citizen suits but existing only to guide state governments in the development of solid waste management programs.
In City of Bangor v. Citizens Communications Co., No. 02-183-B-S, 2006 WL 2516976 (D. Me. Aug. 28, 2006), the court held that no statutory notice was required before bringing a counterclaim in an RCRA citizen suit. Among other things, the court noted that additional notice to governmental agencies would be duplicative of the plaintiff’s notice.
In Voss v. Waste Management of Illinois, Inc., No. 05 C 1510, 2006 WL 305781 (N.D. Ill. Feb. 2, 2006), the court dismissed an RCRA citizen suit because potentially responsible parties were diligently complying with a CERCLA administrative order, and the citizen suit claims were within the scope of the order.
In Interfaith Community Organization v. Honeywell International, Inc., 426 F.3d 694 (3rd Cir. 2005), the court affirmed the district court’s decision to award attorney fees to prevailing RCRA plaintiffs at the market rate charged in the attorneys’ home of Washington, D.C. rather than the litigation forum. The plaintiff had presented evidence that attorneys in the litigation forum were unwilling to prosecute the action. But the court reversed a portion of the district court’s decision on the ground that the hours claimed by the attorneys had not been scrutinized in sufficient detail. The court also held that the prevailing plaintiffs could recover fees for the work of nontestifying expert witnesses.
In Covington v. Jefferson County, 358 F.3d 626 (9th Cir. 2004), the Ninth Circuit held that state laws in an EPA-approved RCRA program may serve as a basis for a federal RCRA citizen suit if the state laws are not more stringent than the federal criteria.
In June v. Town of Westfield, 370 F.3d 255 (2nd Cir. 2004), the Second Circuit rejected the plaintiffs’ claim against the town for alleged “open dumping” on the basis of its prior use of dirt, gravel, sand, rocks, and cement to shore up an embankment. The court found that the plaintiffs failed to allege that, at the time of the lawsuit, the defendants were still introducing substances into the environment and that an historical act cannot support a claim for violation of “open dumping” laws under 42 U.S.C. § 6945(a). But in Parker v. Scrap Metal Processors, Inc., 386 F.3d 993 (11th Cir. 2004), the Eleventh Circuit found a violation of the open dump prohibition when the defendant had, in the past, placed scrap metal and other materials on his property such that “waste could enter the environment.” Id. at 1013. Although the defendant had sold the operation of his scrap metal business, he still owned the property and violated RCRA’s open-dumping prohibition because no person may ‘“cause, suffer, allow or permit open dumping on his property.’” Id.
In In re Voluntary...
