Supporters to Oppose Pollution, Inc. v. Heritage Group

• Decision Date: 29 March 1991
• Docket Number: No. S90-562 (RLM).,S90-562 (RLM).
• Citation: 760 F. Supp. 1338
• Parties: SUPPORTERS TO OPPOSE POLLUTION, INC., Plaintiff, v. The HERITAGE GROUP, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

760 F. Supp. 1338

SUPPORTERS TO OPPOSE POLLUTION, INC., Plaintiff, v. The HERITAGE GROUP, et al., Defendants.

No. S90-562 (RLM).

United States District Court, N.D. Indiana, South Bend Division.

March 29, 1991.

John C. Hamilton, South Bend, Ind., for plaintiff.

Christopher G. Scanlon, James W. Clark, Kevin M. Toner, Indianapolis, Ind., Thomas J. Brunner, Paul J. Peralta, South Bend, Ind., for defendants.

MEMORANDUM AND ORDER

MILLER, District Judge.

This cause is before the court on the defendants' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).

Background

This is the fourth original action filed in this court concerning the Four County Landfill in Fulton County, Indiana, which this court ordered closed in United States v. Environmental Waste Control, Inc., 710 F.Supp. 1172 (N.D.Ind.1989), aff'd, 917 F.2d 327 (7th Cir.1990) ("EPA Action"). That case, Cause No. S87-55, was brought by the Environmental Protection Agency ("EPA"), and the citizen group Supporters to Oppose Pollution, Inc. ("STOP") intervened. Following a thirty-one day trial, the court ordered the owners and operators of the Four County Landfill, Environmental Waste Control, Inc. ("EWC"), James A. Wilkins, Stephen W. Shambaugh, and West Holding Co., to cease operating the landfill, to permanently refrain from operating it in the future, to take the corrective action proposed by the EPA to address the release of hazardous waste into the groundwater, to implement a closure plan within 180 days of its approval, and to pay a civil penalty. That judgment was affirmed on appeal, 917 F.2d 327 (7th Cir.1990), and a petition for certiorari pends in the United States Supreme Court.

On July 14, 1989, STOP mailed the defendants in this case notice of its intent to commence an action against them under certain provisions of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(A), (B). Ten days later, STOP filed its promised complaint ("STOP I"). On October 4, 1989, the defendants moved to dismiss STOP I pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6). STOP moved under Fed.R.Civ.P. 60(b) to vacate the judgment in the EPA Action to add party defendants. That motion was denied in March, 1990.

On November 17, 1989, STOP voluntarily dismissed STOP I and filed an action ("STOP II") under the same provisions of RCRA. The court dismissed STOP II on July 31, 1990. On August 10, STOP served notice of its intent to sue as a prelude to this action and, on November 20, filed this action ("STOP III").

The defendants now move for dismissal, claiming the court lacks subject matter jurisdiction due to STOP's failure to provide a ninety-day nonadversarial notice period pursuant to 42 U.S.C. § 6972(b)(2)(A) and claiming further that this action is barred by the doctrine of res judicata.¹

Standard of Review

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of complaints that state no actionable claim. The complaint's factual allegations will be taken as true and viewed in the light most favorable to the plaintiff when challenged by a motion to dismiss. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Brown v. City of Lake Geneva, 919 F.2d 1299, 1300 (7th Cir.1990). Dismissal is proper only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Gregory v. Nunn, 895 F.2d 413, 414 (7th Cir.1990); Gold v. Wolpert, 876 F.2d 1327, 1329 (7th Cir.1989) (dismissal appropriate if complaint "failed to allege any set of facts on which relief could be granted").

Under the notice pleading of the Federal Rules of Civil Procedure, a complaint must include allegations respecting all material elements of all claims asserted; bare legal conclusions attached to narrated facts will not suffice. Strauss v. Chicago, 760 F.2d 765, 768 (7th Cir.1985); Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir.1984).

Subject Matter Jurisdiction

STOP asserts claims of imminent endangerment pursuant to 42 U.S.C. § 6972(a)(1)(B), which provides in part:

Except as provided in subsection (b) ... any person may commence a civil action on his own behalf —

* * * * * *

(B) against any person, 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 an imminent and substantial endangerment to health or the environment....

A private party's right to bring an imminent endangerment action is limited by subsection (b)(2)(A), which provides:

No action may be commenced under subsection (a)(1)(B) of this section prior to ninety days after the plaintiff has given notice of the endangerment to —

(i) the Administrator;

(ii) the State in which the alleged endangerment may occur;

(iii) any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in subsection (a)(1)(B) of this section....

The defendants assert that this notice requirement is jurisdictional. They rely in part on the Supreme Court's recent holding that a plaintiff's failure to comply with the sixty-day notice requirement of 42 U.S.C. § 6972(b)(1) barred suit pursuant to § 6972(a). Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989). In that case, however, the court stated:

We hold that the notice and the 60-day delay requirements are mandatory conditions precedent to commencing suit under the RCRA citizen suit provision; a District Court may not disregard these requirements at its discretion. The parties have framed the question presented in this case as whether the notice provision is jurisdictional or procedural. In light of our literal interpretation of the statutory requirement, we need not determine whether § 6972(b) is jurisdictional in the strict sense of the term.

Hallstrom v. Tillamook County, 110 S.Ct. at 311. The defendants also cite this court's opinion in the EPA Action, which acknowledged that the Seventh Circuit views the notice requirement as jurisdictional. United States v. Environmental Waste Control, Inc., 710 F.Supp. at 1190.

The defendants claim that the ninety-day notice period required by § 6972(b)(2)(A) must be a "nonadversarial" period, relying in part on this court's dismissal of STOP II, which stated that:

Since only ten days elapsed between the giving of notice and the filing of the first action, merely dismissing the first action and refiling on the same day did not give the defendants a ninety-day nonadversarial period within which to comply with RCRA regulations. STOP's dismissal of the first suit and immediate refiling of the second action is the functional equivalent to staying the action for the statutory period to achieve compliance with the notice requirement. The Hallstrom Court specifically rejected that approach, 110 S.Ct. at 309, noting that because citizen suits under RCRA generally are filed by trained lawyers who are presumed to be aware of statutory requirements, it is not unfair to require strict compliance with statutory conditions precedent to filing suit. Hallstrom, 110 S.Ct. at 310.

Memorandum and Order of July 31, 1990, p. 8. Notice of the STOP III action was served while STOP's motion to alter or amend the July 31 dismissal of STOP II was pending in this court. STOP II remains pending on appeal. The defendants claim that because STOP continues to litigate the RCRA claims asserted in STOP II, it has failed the ninety-day nonadversarial notice requirement.

STOP claims it meets the requirements of subsection (b)(2)(A) because its August 10, 1990 notice preceded the filing of this suit by 102 days. STOP argues that neither Hallstrom nor the statute requires a nonadversarial period, i.e, a period in which no litigation of any kind is pending on any claims against the defendants. The subsection's language does not specifically state that the notice period must be nonadversarial. STOP further argues that inserting the requirement of "non-adversariness" into the notice requirement emanates from an overly expansive reading of dicta in Hallstrom, 110 S.Ct. at 312, wherein the Court stated that its "decision will further the Congressional purpose of giving agencies and alleged violators a 60-day nonadversarial period to achieve compliance with RCRA regulations." The Hallstrom Court only held, STOP contends, that if a plaintiff fails to meet the notice requirements of § 6972(b), the court must dismiss the action.

In Hallstrom, the plaintiffs gave notice to the alleged violator, the operator of a sanitary landfill, one year before suit. Following the defendant's motion for summary judgment based on lack of notice to the State and the EPA, the plaintiffs notified the state and federal agencies of the suit. The district court denied summary judgment on the ground that the plaintiffs had satisfied the notice requirement. The Supreme Court affirmed the Ninth Circuit's order remanding the case to the district court with instructions to dismiss. STOP notes that in that case neither the State of Oregon nor the EPA had been given pre-suit notice of any kind; therefore, they could not involve themselves in compliance with the RCRA regulations. In this case, however, the defendants and the state and federal agencies had 102 days notice before this action was commenced, in addition to the notices provided as a prelude to STOP I and II. During this time, the defendants or the agencies presumably could have involved themselves in compliance.

STOP also argues that even if the "non-adv...