By Chris A. Paul
If a notice pursuant to the Resource Conservation and Recovery Act asserts that there is an ongoing release of pollutants, then it is unnecessary for a plaintiff to specify the date on which the violations occurred. That was the court’s finding in KFD Enterprises Inc. v. City of Eureka, N.D. Cal., No. 08-4571, 4/28/11. This federal court also found that the plaintiff’s notice sufficiently alleged an “imminent and substantial endangerment” by asserting that the contamination involved was migrating toward a residential community’s drinking water wells.
KFD Enterprises Inc. owns and operates a dry cleaner in Eureka, California. KFD filed suit against the city of Eureka under RCRA, the Comprehensive Environmental Response, Compensation, and Liability Act, and several theories of tort liability. KFD alleged the city, through acts and omissions as the owner-operator of the sewer system, caused or allowed releases of hazardous substances from the sewer system, which resulted in contaminated soil and groundwater.
The city moved to dismiss the RCRA count, arguing that KFD’s notice did not contain sufficient facts to meet RCRA’s notice requirements. The city said “a broadly worded letter alleging violations over a 20-year period is not sufficient to comply with the pre-suit notice requirements,” and that because KFD did not specify the time period in which Eureka violated RCRA, it could not figure out when its sewer started leaking, for how long it had leaked, and what chemicals and in what concentrations.
The court found that “Although the notice does not specify a particular date or dates on which such leakage occurred, such specification is not required where, as here, the notice asserts the public entity’s contribution to the pollution is essentially ongoing,” and that KFD’s assertion that pollution is “migrat[ing] beneath the downgradient residential community, toward water supply wells, surface water and nearby schools” to be sufficient notice of “imminent and substantial endangerment.”