Roe v. Wert

• Decision Date: 31 January 1989
• Docket Number: No. CIV-88-1852-P.,CIV-88-1852-P.
• Citation: 706 F. Supp. 788
• Parties: Charles E. ROE and Anita I. Roe, Plaintiffs, v. Pete WERT; Melvin Hatley; USA Waste Management, Inc., an Oklahoma corporation; General Materials, Inc., an Oklahoma corporation; Haskell Lemon Construction Company, an Oklahoma corporation; Newcastle Land Company, an Oklahoma corporation, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

706 F. Supp. 788

Charles E. ROE and Anita I. Roe, Plaintiffs, v. Pete WERT; Melvin Hatley; USA Waste Management, Inc., an Oklahoma corporation; General Materials, Inc., an Oklahoma corporation; Haskell Lemon Construction Company, an Oklahoma corporation; Newcastle Land Company, an Oklahoma corporation, Defendants.

No. CIV-88-1852-P.

United States District Court, W.D. Oklahoma.

January 31, 1989.

James A. Idard, Angel, Ikard & Nach, Oklahoma City, Okl., for plaintiffs.

Robert L. Huckaby, Huckaby, Fleming, Frailey, Chaffin & Darrah, Chickasha, Okl., and Robert D. McCutcheon, Hastie and Kirschner, Oklahoma City, Okl., for defendants.

ORDER

PHILLIPS, District Judge.

I. INTRODUCTION

Before the Court is the motion to dismiss filed by defendants Pete Wert, General Materials, Inc., Haskell Lemon Construction Co., and Newcastle Land Co. (collectively "Wert, et al."); the motion to dismiss filed by defendants Melvin Hadley and USA Waste Management, Inc. ("Hadley and Waste Management"); and plaintiffs' (the "Roes") motion for leave to amend their Complaint to add a cause of action under the Resource Conservation & Recovery Act ("RCRA"), 42 U.S.C. § 6972. Oral arguments on all motions were heard January 3, 1989.

This action involves a claim by land owners pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607, and pendent state claims for response costs and environmental damage arising from an alleged hazardous waste disposal site on property adjacent to that of the Roes. The Roes claim that the hazardous waste polluted their land. The Roes did not give statutory pre-suit notice. Consequently, defendants contend the Court has no subject-matter jurisdiction. The Roes contend they gave notice-in-fact, and moreover, actual notice has been given subsequent to the Complaint being filed. The dispositive issue before the Court is whether private suits under CERCLA require sixty (60) days presuit notice to the entities, including defendants, referenced in the statute. The Court answers affirmatively. Accordingly the Court is without subject-matter jurisdiction, and the motions to dismiss are GRANTED.

II. RELEVANT STATUTES

Since October 17, 1986 CERCLA has had a citizens suits provision that requires presuit notice:

A. CERCLA:

§ 9659. Citizens suits

(a) Authority to bring civil actions

Except as provided in subsection (d) and (e) of this section and section 9613(h) of this title (relating to timing of judicial review), any person may commence a civil action on his own behalf—

(1) against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter (including any provision of an agreement under section 9620 of this title, relating to Federal facilities); ...

. . . . .

(d) Rules applicable to subsection (a)(1) actions

(1) Notice

No action may be commenced under subsection (a)(1) of this section before 60 days after the plaintiff has given notice of the violation to each of the following:

(A) The President.

(B) The State in which the alleged violation occurs.

(C) Any alleged violator of the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title).

Notice under this paragraph shall be given in such manner as the President shall prescribe by regulation.

(2) Diligent prosecution

No action may be commenced under paragraph (1) subsection (a) of this section if the President has commenced and is diligently prosecuting an action under this chapter, or under the Solid Waste Disposal Act 42 U.S.C.A. § 6901 et seq. to require compliance with the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title).

42 U.S.C. § 9659(a)(1) & (d) (1986).

Section 9659(d)(2) explains that notice is required because if the Environmental Protection Agency ("EPA") commences an action and is diligently prosecuting that action then a citizens suit is prohibited.

CERCLA also has a notice requirement for claims against the Superfund:

§ 9612. Claims procedure

(a) Claims against the Fund for response costs

No claim may be asserted against the Fund pursuant to section 9611(a) of this title unless such claim is presented in the first instance to the owner, operator, or guarantor of the vessel or facility from which a hazardous substance has been released, if known to the claimant, and to any other person known to the claimant who may be liable under section 9607 of this title. In any case where the claim has not been satisfied within 60 days of presentation in accordance with this subsection, the claimant may present the claim to the Fund for payment. No claim against the Fund may be approved or certified during the pendency of an action by the claimant in court to recover costs which are the subject of the claim.

42 U.S.C. § 9612(a) (1986).

RCRA also has a sixty (60) day notice provision for citizens suits, but there is an exception in the case of hazardous waste:

B. RCRA:

§ 6972. Citizens suits

(a) In general

Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf—

(1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or

(B) against any person including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present any imminent and substantial endangerment to health or the environment (b) Actions prohibited

(1) No action may be commenced under subsection (a)(1)(A) of this section—

(A) prior to 60 days after the plaintiff has given notice of the violation to—

(i) the Administrator;

(ii) the State in which the alleged violation occurs; and

(iii) to any alleged violator of such permit, standard, regulation, condition, requirement, prohibition, or order,

except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchapter III of this chapter hazardous waste, or....

42 U.S.C. § 6972(a) & (b)(1)(A) (1984) (emphasis supplied).

III. LEGISLATIVE HISTORY OF CERCLA

Because of the numerous environmental statutes and the immediate need to distinguish CERCLA from RCRA the following legislative background is provided:

A. House Report Excerpts:

Eleven Federal environmental laws now contain citizens suits provisions. These laws include the Clean Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, ... RCRA, the Noise Control Act, the Safe Drinking Water Act, the Endangered Species Act, the Deep Water Port Act, the Outercontinental Shelf Land Act, the Surface Mine Control and Reclamation Act, and the Marine Protection, Research, and Sanctuaries Act.

Section 9659 would authorize citizens suits under Superfund. This provision would authorize citizens suits against persons alleged to be in violation of any requirement which is effective pursuant to the Act. It would also authorize suits against government officials who are alleged to have failed to perform mandatory duties under the Act.

. . . . .

In 1983, this Committee considered a proposal ... to authorize citizens suits under RCRA for the first time.... Citizens were authorized to bring suits "against any person, including the United States and any other government instrumentality or agency ... and any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility ..." where their activities may present "an imminent and substantial endangerment to health or the environment." The Committee amendment to H.R. 2817 provides for the same type of action under Superfund.

One of the main reasons the Committee added this provision to CERCLA is because it is unclear whether citizens can use the citizen suits provision currently contained in RCRA (described above) to address all waste site threats. Each time a citizen currently brings a case under RCRA, the court has to decide whether the substance is a solid waste under RCRA criteria in order to allow the suit to proceed. Thus, the only way to ensure that citizens have protection from all hazardous substances, including those that are not RCRA "hazardous waste", is to authorize citizens suits under CERCLA. With this amendment, plaintiffs and the courts will not have to waste time and resources in determining that a non-listed substance is a solid waste under RCRA. Citizens should be able to sue to protect themselves from dangerous chemicals regardless of whether EPA has formally listed the chemical under RCRA.

HOUSE JUDICIARY COMM. R. NO. 99-253, H.R. No. 2817, reported in, 1 SARA: The Superfund Amendments and Reauthorization Act of 1986: The Legislative History at 206-24 (Environmental Institute For Waste Management Studies, 1987).

B. Senate Report Excerpts:

A citizen suit provision has been a standard feature of each of the major environmental laws since the early 1970's. The reported bill adds such a provision to the Superfund law. Under this

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