ELR Citation: ELR 20027
No(s). 07-CV-5244 (E.D.N.Y. Jan 27, 2009)

A district court dismissed a village's Resource Conservation and Recovery Act (RCRA) claim against a company for releasing toxins into its water supply because the U.S. Environmental Protection Agency (EPA) and the state have incurred costs to initiate a remedial investigation and feasibility study (RI/FS) under §104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and are diligently proceeding with a remedial action under that Act. The RI/FS was initiated pursuant to a 1997 consent order between the state and the company without involvement from EPA, who did not exercise responsibility with regard to the site until 2007. Nevertheless, the exchange of letters between EPA and the state in which EPA concurred in the state's RI/FS proposal constitutes a "cooperative agreement" for the purposes of CERCLA §104. Although §104 is clear in requiring that a state act pursuant to a "contract or cooperative agreement" with the federal government, there is no requirement that the agreement take one specific form. The village's Safe Drinking Water Act claim was also dismissed because it was based on regulations that did not exist at the time of the alleged release of the contaminants and they have no retroactive effect. The village's nuisance, trespass, and negligence claims were dismissed as well. However, the court denied motions to dismiss the village's CERCLA claim as time barred. The question of whether the village's activities at the site constituted a "remedial" or "removal" action, which is critical to the statute of limitations issue, is a question that cannot be resolved at the motion to dismiss stage.