McCastle v. Rollins Environmental Services

• Decision Date: 05 June 1981
• Docket Number: Civ. A. No. 81-185-A.
• Parties: Mary McCASTLE et al. v. ROLLINS ENVIRONMENTAL SERVICES et al.
• Court: U.S. District Court — Middle District of Louisiana

514 F. Supp. 936

Mary McCASTLE et al. v. ROLLINS ENVIRONMENTAL SERVICES et al.

Civ. A. No. 81-185-A.

United States District Court, M. D. Louisiana.

May 13, 1981.

Ruling on Motion for Reconsideration June 5, 1981.

Stephen Irving, Dennis R. Whalen, Baton Rouge, La., for plaintiffs.

Wallace A. Hunter and Sera H. Russell, Ill, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, La., for defendants.

JOHN V. PARKER, Chief Judge.

This matter is before the Court on a motion to remand to the Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana, where the action was originally filed. The issues presented regarding federal removal jurisdiction are, so far as we are able to determine, res nova in the Fifth Circuit.

Factual Situation

Plaintiffs brought this action in state court against defendant Rollins on behalf of themselves and as representatives of a class allegedly numbering some 4,000. Plaintiffs and the class are all alleged to be residents of the Parish of East Baton Rouge, Louisiana, in "an area adjacent to and in close proximity to a hazardous waste disposal facility being operated by defendant." Defendant's hazardous waste disposal facility is alleged to consist of "incinerators, ponds, pits, and landfarming." The petition alleges that on numerous occasions in 1980 and 1981 Rollins "has released into the atmosphere stinking, obnoxious, nauseating, repugnant, burning chemical fumes and odors which have been carried by the wind to the residences of plaintiffs causing plaintiffs to become ill, uncomfortable and miserable with burning eyes, sore throats and upset stomachs." The petition further alleges that the facility is "both a nuisance at law and a nuisance in fact." Plaintiffs pray for money damages and for injunctive relief, including closure of the facility. The state court issued an order temporarily restraining Rollins "from releasing chemical fumes or odors into the atmosphere which cause plaintiffs to become ill, uncomfortable and miserable." Defendant timely removed the action to this Court upon the asserted authority of 28 U.S.C. § 1441(b), federal question jurisdiction. This Court has, on motion of plaintiffs, extended the temporary restraining order from time to time and plaintiffs have filed a motion to remand.

The Issues

Defendant's claimed bases for removal are: First, that the action is brought under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., and thus is founded upon a claim "arising under the Constitution, treaties or laws of the United States." Defendant also argues that the jurisprudence indicates that there is an overriding federal interest in the quality of the ambient air which requires the application of a uniform body of federal "common law" throughout the nation. Thus, defendant argues that the matter falls within 28 U.S.C. § 1441(b).

Plaintiffs argue that their grievances involve purely local incidents of limited, though powerful, air pollution involving only Louisiana law and affecting only a small area of East Baton Rouge Parish, Louisiana, and further that their action has no relationship to any federal law, common or otherwise.

I.

The statutory right of a defendant in a state court proceeding to remove the action to federal court under 28 U.S.C. § 1441(b) is coextensive with the grant of federal jurisdiction under 28 U.S.C. § 1331(a). State of Tennessee v. Union & Planter's Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). In other words, the action is properly removable if it could have been brought in federal district court, in the first place. State of Tennessee v. Union & Planter's Bank, supra; Gully v. First National Bank in Meridian, supra. The jurisprudence is long and uniform to the effect that in order to determine whether an action "arises under" federal law the Court must look exclusively to the allegations of the petition. State of Tennessee v. Union & Planter's Bank, supra; Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Dozier v. Weaver, 481 F.Supp. 38 (M.D.La.1979). The Court is not bound by plaintiffs' language, however, and it must look to the substance of the pleading, not the labels used by plaintiffs. In Re Carter, 618 F.2d 1093 (5th Cir. 1980). The allegations of this petition have been summarized above.

II.

Rollins argues that even though plaintiffs may not have intended to do so, they have alleged a cause of action under the Resource Conservation and Recovery Act of 1976. That statute establishes a system of permits and regulations of "hazardous waste" and "solid waste management" facilities, including "performance standards ... necessary to protect human health and environment." 42 U.S.C. § 6924. Civil and criminal penalties are prescribed for violations of the Act, permits and regulations, 42 U.S.C. § 6928, and the Act authorizes "citizen suits." 42 U.S.C. § 6972(a) authorizes "any person" to institute an action against any person "who is alleged to be in violation of any permit, standard, regulation, condition, requirement or order."

Rollins argues that, although plaintiffs do not so allege, defendant is subject to federal permits for its Baton Rouge facility and that the "stinking, obnoxious, nauseating, repugnant, burning chemical fumes and odors" which are described by plaintiffs would violate federal standards. Hence, Rollins argues that the action "arises under" federal law, specifically 42 U.S.C. § 6972(a).

Section 6972(c), as amended in 1978, provides, however, that no action may be commenced under the Act until after plaintiff has given notice to the administrator of the Environmental Protection Agency. Notice of this sort has been held to be jurisdictional and no action may be instituted in its absence. See National Sea Clammers Association v. City of New York, 616 F.2d 1222 (3rd Cir. 1980), cert. granted, ___ U.S. ___, 101 S.Ct. 314, 66 L.Ed.2d 145 (1981), dealing with a similar notice provision under the Federal Water Pollution Control Act.

It is undisputed that plaintiffs have given no notice of this action and none is alleged in the petition. Under these circumstances, it is clear that plaintiffs have not brought and could not have brought this action under 42 U.S.C. § 6972(a).

III.

Although not cited by the parties, the Court has sua sponte examined the provisions of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, P.L. 96-510. The asserted purpose of that legislation is to provide for liability, compensation, cleanup and emergency response to hazardous substances released into the environment. Section 107 of the Act specifically imposes liability upon persons who own or operate any facility at which hazardous substances are disposed of where such substances are released and cause injury or damage. This Act became effective December 11, 1980, and although many of the incidents complained about by plaintiffs occurred prior to the effective date of the Act, some of them occurred as late as February 21, 1981. Thus, this Act could apply to the alleged incidents if plaintiffs' injuries were caused by release of "hazardous substances" as defined by Section 101(14) of the Act. As is the case with most federal legislation, Section 101(14) is an immensely complicated definition drawing in other federal statutes. Plaintiffs make no specific reference to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, nor do they make any specific reference to "hazardous substances" as defined by that Act. As noted above, the plaintiffs object to "stinking, obnoxious, nauseating, repugnant, burning chemical fumes and odors," none of which are specifically included within the definition of the Act. Suffice it to say that a fair reading of this petition does not indicate that it is brought under the liability provisions of Section 107 of this congressional enactment.

Section 114(a) of the Act provides:

"Nothing in this Act shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State."

Even more significant, however, is Section 302(d) of the Act which specifically provides:

"Nothing in this Act shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants. ..."

This petition is not brought under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, particularly since recovery is limited under the statute and there is no authorization for injunctive relief, in favor of private parties.

IV.

Lastly, defendant argues that plaintiffs' action is actually brought under federal "common law" and that the action thus "arises under" federal law.

In Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), the Supreme Court recognized the existence of a limited body of federal "common law." There, Illinois complained that the City of Milwaukee and others were polluting Lake Michigan by discharging sewage into its waters, thus creating a public nuisance. The Court declined to entertain the suit under its original jurisdiction, holding that the plaintiff had a claim under federal common law for abatement of a nuisance caused by pollution of interstate waters which could be asserted in a federal district court.

Rollins has cited Illinois v. Milwaukee, as well as an extension of that holding by the Seventh Circuit, People of State of Illinois v. Outboard Marine Corp., 619 F.2d 623 (7th Cir. 1980), as indicating that uniform federal common law should govern intrastate air pollution as well as water pollution incidents. The Outboard Marine case...