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South Rd. Assocs. v. International Bus. Machs.

ELR Citation: 30 ELR 20708
Nos. No. 99-9072, 216 F.3d 251/50 ERC 1908/(2d Cir., 06/20/2000)

The court holds that a landowner cannot maintain a Resource Conservation and Recovery Act (RCRA) citizen suit against its lessee for violating RCRA's open dumping provision because the continued presence of contaminants deposited by the lessee in the past is not an ongoing violation of RCRA. The lessee used and stored chemicals classified as solid and hazardous wastes on the leased property and some of the chemicals leaked into the surrounding soil, bedrock, and groundwater. The court first holds that the landowner's complaint failed to state an ongoing violation of RCRA's open dumping provisions. The statutory prohibition on open dumps and open dumping does not state whether an ongoing violation of the open dumping provision requires ongoing conduct. However, when RCRA is read together with the regulatory criteria for classifying solid waste disposal facilities, it is clear that the act of introducing substances that cause maximum contaminant level (MCL) exceedances is prohibited, not the MCL exceedances themselves. Therefore, because the complaint does not allege that the lessee is introducing substances that would cause MCL exceedances, the complaint does not plead that the lessee is engaged in open dumping.

Counsel for Plaintiff
Robert J. Alessi
LeBoeuf, Lamb, Greene & MacRae
One Commerce Plaza
99 Washington Ave., Ste. 2020, Albany NY 12210
(518) 465-1500

Counsel for Defendant
Nancy MacKimm
Jones, Day, Reavis & Pogue
2727 N. Harwood St., Dallas TX 75201
(214) 220-3939

Before Kearse and Korman,* JJ.