Brod v. Omya, Inc.
653 F.3d 156
2d Cir.2011Background
- Omya operates a calcium carbonate processing Plant in Florence, Vermont; tailings are dumped into unlined TMAs near the Plant in fractured bedrock; groundwater and on-site/off-site springs are affected.
- RCO formed to challenge Omya's waste disposal practices and served a NOI under RCRA §6972(b) in 2004 listing multiple contaminants; EPA/VANR did not file actions within 90 days, prompting suit.
- District Court denied Omya’s summary judgment on endangerment and denied RCO’s partial summary judgment on open dumping; later, the court found some liability and scheduled a remedy hearing.
- During dismissal/remedy phases, Omya contested AEEA-related evidence and RCO sought to introduce toxicity testimony; the remedy hearing addressed remedy and not liability.
- The District Court vacated the liability ruling in 2009 after re-evaluating the evidence about AEEA’s toxicity, and this appeal followed challenging notice adequacy and endangerment/ open dumping rulings.
- This Court affirms the dismissal and clarifies notice requirements under RCRA, including that the NOI must identify the specific contaminants that underlie liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RCO’s NOI satisfied RCRA notice requirements | Brod/RC0 contends NOI identified 21 contaminants, including AEEA/arsenic | Omya argues NOI failed to identify relevant contaminants, so claims are barred | NO; NOI failed to identify AEEA/arsenic as contaminants, thus insufficient notice |
| Appropriate standard for imminent and substantial endangerment under RCRA | RCO argues broad ‘any risk’/Dague standard supports remedy | Omya contends evidence does not show near-term serious endangerment | Endangerment requires near-term risk; in this case, evidence insufficient to sustain liability at remedy stage |
| Open dumping claim under RCRA §6945 and Appendix I vs SDWA standards | RCO argues SDWA 10 ppb MCL supersedes 50 ppb Appendix I | Omya contends Appendix I governs and SDWA update requires rulemaking | Open dumping claim cannot be sustained under the facts; SDWA updates not controlling where Appendix I governs |
| Admissibility of arsenic/toxicity testimony at remedy hearing | RCO sought expert testimony on toxicity and drinking water guidelines for AEEA | Omya urged exclusion as improper for liability phase | Court properly limited testimony to remedy context; later evidence could not revive liability finding |
| Effect of noncompliant NOI on district court jurisdiction and subsequent relief | RCO argues district court could review liability despite NOI gaps | Omya asserts dismissal of endangerment/open dumping claims warranted by NOI deficiencies | Dispositive in favor of Omya; proper NOI required for liability under RCRA |
Key Cases Cited
- Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir.2001) (NOI must identify with reasonable specificity each pollutant and the activity alleged to violate)
- Building Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Development, Inc., 448 F.3d 138 (2d Cir.2006) (notice and delay provisions promote compliance and governmental action)
- Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.1991) (expansive authority to grant equitable relief to eliminate risk posed by toxic wastes)
- Hallstrom v. Tillamook County, 493 U.S. 20 (1989) (mandatory 60-day notice as condition precedent; policy of balancing enforcement)
- Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir.2009) (defines near-term risk standard under Dague framework)
- Metacon, Ltd. v. International Bus. Machines Corp., 575 F.3d 204 (2d Cir.2009) (discusses environmental liability standards and equitable relief)