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Brod v. Omya

ELR Citation: 41 ELR 20236
Nos. 09-4551, (2d Cir., 07/18/2011)

The Second Circuit affirmed a lower court decision dismissing residents' RCRA claims against a minerals processing plant. The residents claimed that the plant 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 aminoethylethanolamine (AEEA). They also claimed that the plant was operating an unlawful open dump because the solid waste allegedly contained an amount of arsenic above the permitted level established by EPA. But when an alleged violation of RCRA depends on the presence or release of a particular contaminant, the plaintiff's notice of violation and intent to file suit (NOI) must identify the contaminant alleged to be the basis of the violation with sufficient specificity to permit the recipient to identify the specific legal provision alleged to be violated and the activity alleged to constitute the violation. Here, the residents' NOI did not identify AEEA and arsenic as contaminants in the plant's waste. Accordingly, they did not give the plant adequate notice of the endangerment and open dumping violations for which they seek to hold the plant liable. The lower court, therefore, properly dismissed the residents' endangerment and open dumping claims.