## Facts

- IBM leased and operated an industrial facility in Poughkeepsie, New York from the mid-1950s until early 1994; South Road Associates (SRA) owned the property during the later portion of IBM’s tenancy.
- IBM stored chemical wastes, including hazardous wastes, in underground tanks that were discovered in the early 1980s to be leaking into soil, bedrock, and groundwater.
- IBM undertook remediation; the state environmental regulator initially classified the site as a significant hazard (Class 2) and later reclassified it to a status requiring continued management/monitoring (Class 4).
- After IBM’s lease ended and IBM vacated, SRA sued in federal court, including a RCRA citizen-suit claim alleging that contamination remained and that maximum contaminant levels (MCLs) continued to be exceeded under the EPA’s open-dumping criteria.
- IBM moved to dismiss under Rule 12(b)(6), asserting that RCRA citizen suits require an ongoing violation rather than continuing effects of past conduct.

## Issues

1. Whether a RCRA citizen suit under 42 U.S.C. § 6972(a)(1)(A) may proceed when the defendant’s waste-handling conduct has ended, but contamination remains and continues to migrate or exceed regulatory MCL thresholds.
2. Whether the RCRA open-dumping prohibition and the implementing criteria in 40 C.F.R. Part 257 treat continuing MCL exceedances, without current waste-management activity by the defendant, as a present violation by a former operator.

## Decision

- The Second Circuit affirmed dismissal of the RCRA claim for failure to state a claim.
- The court held that RCRA citizen suits under § 6972(a)(1)(A) are limited to “ongoing” violations, not wholly past violations.
- The district court’s categorical view that RCRA citizen suits always require ongoing conduct by the defendant was overbroad; instead, whether present conduct is required depends on the specific statutory/regulatory provision invoked.
- Applying that provision-specific inquiry, the court concluded that the open-dumping criteria relied on by SRA did not treat residual contamination from past operations, standing alone, as a present violation by IBM after it ceased operations and left the property.

## Legal Principles

- A claim under RCRA’s citizen-suit provision, 42 U.S.C. § 6972(a)(1)(A), must allege that the defendant “is” in violation; suits based solely on “wholly past” violations are not authorized.
- Whether conditions resulting from past conduct can constitute a present violation depends on the text and structure of the particular RCRA prohibition or regulation alleged to be violated.
- For RCRA’s open-dumping prohibition and the related criteria in 40 C.F.R. Part 257 as applied here, continuing contamination and MCL exceedances were treated as continuing effects of past disposal practices, not an ongoing violation by a former tenant no longer engaged in waste-handling operations at the site.

## Conclusion

The Second Circuit held that SRA’s allegations of ongoing contamination and MCL exceedances, traceable to IBM’s historical waste storage and releases, did not plead an ongoing violation of the specific RCRA open-dumping provisions invoked once IBM had ceased operations and vacated the property, so the RCRA citizen-suit claim was properly dismissed.


South Road Assocs. v. Int'l Bus. Machs. Corp., 216 F.3d 251 (2d Cir. 2000)