Document Type

Article

Publication Date

7-18-2011

Abstract

Plaintiffs-appellants, Ernest Brod, Robert DeMarco, Beverly Peterson, and Residents Concerned about Omya (collectively, the "plaintiffs" or "RCO"), appeal from a judgment entered September 30, 2009, in the United States District Court for the District of Vermont (Niedermeier, M.J.), vacating so much of a summary judgment as held defendants-appellees Omya, Inc. and Omya Industries, Inc. (collectively, "Omya") liable for creating an "imminent and substantial endangerment" within the meaning of the Resource Conservation and Recovery Act of 1976, Pub.L. 94-580, 90 Stat. 2795 (October 21, 1976) (codified at 42 U.S.C. §§ 6901-92) ("RCRA"). Liability was predicated upon a finding that aminoethylethanolamine ("AEEA") was present in Omya's waste. Following a remedy hearing held after the entry of summary judgment, the District Court (1) determined that, based on, inter alia, subsequent testing and expert testimony presented at the remedy hearing, the potential harm posed by AEEA did not in fact constitute a "serious endangerment," and thus no remedy was warranted; and (2) granted Omya's motion to dismiss all claims related to AEEA because plaintiffs had failed to satisfy the citizen suit notice requirements of RCRA. In an Opinion and Order, dated July 1, 2008, the District Court dismissed RCO's open dumping claim, the court having found that arsenic was not present at a level high enough to subject Omya to liability under RCRA. In its complaint, which raised two claims, RCO alleged that Omya's waste disposal practices violated RCRA. RCO first claimed that Omya was creating an imminent and substantial endangerment to human health and the environment by permitting its waste to seep into the groundwater, thereby contaminating hydrologically-connected water sources with AEEA. RCO also claimed that Omya was operating an unlawful open dump because Omya's solid waste allegedly contained an amount of arsenic above the permitted level established by the Environmental Protection Agency ("EPA"). On appeal, RCO claims that the District Court: (1) erred by concluding that Omya's disposal of AEEA did not create an imminent and substantial endangerment; (2) erred by granting Omya's motion to dismiss all claims related to AEEA, the District Court having held that RCO failed to satisfy RCRA's citizen suit notice requirements; (3) erred in finding that Omya's disposal of solid waste did not violate RCRA's prohibition on open dumping; and (4) abused its discretion by denying RCO's request to present expert testimony on arsenic contamination and area toxicity. For the reasons stated below, we affirm.

Comments

653 F.3d 156 (2011)

Ernest BROD, Robert DeMarco, Beverly Peterson, Residents Concerned About Omya, an unincorporated association under Vermont law, on behalf of its members who are residents of Pittsford, Vermont living in close proximity to defendants' Florence facility, Plaintiffs-Appellants,

v.

OMYA, INC., Omya Industries, Inc., Defendants-Appellees.[*]

Docket No. 09-4551-cv. United States Court of Appeals, Second Circuit.

Submitted: September 13, 2010. Decided: July 18, 2011.

New York Law School location: Box 156, File 3983

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