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2009_0720_Packet
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2009_0720_Packet
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As noted, RCI�A claims depend upon an immrnent and substantiial endangermeni ta health or <br />the environment. This entai�s a showing of a threat, and may be shown even ifthe i�npact �vill not be <br />felt until later. The Eighth Circuit Court of Appeals has said that RCItA is limited to situations in <br />which the potential for harm is great, but this is a fact-specific analysis tha� leaves room for <br />interpretation. If remedies have already been performed, RCRA injunctions are generally not <br />avaiIable and prior costs cannot be recovered. Conversely, in at least one Seventh Circuit case, a <br />claim far an injunction under RCRA failed where the risks of off-site contamination would not <br />materialize unless or until excavation was performed and there was no showing that the excavation <br />was imminent. <br />Remec�ies under RCRA can be any form of injunctive relief necessary to prevent ongoing <br />releases. RCI�A remedies may not support clean-up of the offending site itself. <br />RCRA can reach arry type of hazardous waste and there is no petroleum exclusion under <br />� � A <br />Before a citizen (or any other person, such as the Cit�} may bri�g a RCRA action, notice <br />rnust be given to the EPA, the state and the alfeged violator. RCRA actions will not be allowed to <br />proceed ii there is already a response action underway at the instigation of ihe federal or state <br />authorities. <br />RCRA allaws the recovery of attarr�eys' fees or other costs to the prevailing party. <br />CERCLA <br />Under the Comprehensive Enviror�mental Response, Compensation and �,iability Act <br />("CERCLA"), 42 U.S:G §§ 9601 to 9675, the City can pursue a cost recovery cIaim against owners, <br />operators or transporters who are respansible for sites or facilities from which there �s a release, or a <br />threatenec� release, which causes the incurrence of response costs far a hazardous substance. The <br />cost recovery statute is set forth at 42 U.S.C. § 9607. The plaintiff can recover any "necessary costs <br />of response .., consist�ent with tih� �ational contingency pIan." Id. <br />CEI�CLA claims are available for ``hazardaus substances," which are defined s�mewhat <br />differently than RCRA's "hazardous wastes." In some respects, CERC�,A's reach is broader tlzan <br />RCRA's but in other respects CE1�CL,A is more limited. A significant diiference is that CERCLA <br />does not reach�petroleum spills. <br />In contrast ta RCRA, which is primarily a preventative statute, CERCT�A is designec� to <br />ac�dress situations in which harm has already occurred in addition to preventing threats. The rerrredy <br />in CERCLA is, in the first instance, cost recovery. This means that parties seek to recover sums thai <br />have already been expended on the recovery. �-Iowe�er, courts have also coupled co5t recovery <br />awards with additional relief such declaratory relief and injunctions addressing ongoing or future <br />obIigations: CERCLA does not allow recovery oiattorneys' fees for the prosecution of cost recovery <br />claims (although fees can f�e recovered if incurred as part of the response action itsel�. <br />Private cost r�covery (including claims by parties such as the City} depend upon a showing <br />that the sums expended were necessary and co�sisteni with the National Conting�ncy Plan ("NCP"). <br />� <br />
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