Walls v. Waste Resource Corp.
| Decision Date | 06 May 1985 |
| Docket Number | No. 84-5287,84-5287 |
| Citation | 22 E.R.C. 1785,761 F.2d 311 |
| Parties | , 15 Envtl. L. Rep. 20,438 Linda WALLS; Jerry Walls; Richard Story; Gail Story; Russell Rogers; Mary Lee Rogers; Tammy Rogers; Russell Timothy Rogers; Roxie Wilson; Ida Broyles; Kenneth Hughes and Dorothy Hughes, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. WASTE RESOURCE CORP.; Bumpass Cove Development Corp.; Waste Resources of Tennessee, Inc.; Jack McDonald; David Witherspoon, Sr.; Gary L. Phillips; Allied Chemical Corporation; Arapahoe Chemicals, Inc.; Beecham, Inc.; Burton Rubber Processing, Inc.; General Electric Co.; Hayes-Albion Corp.; Hoover Ball & Bearing Co., Inc.; I.P.C. Dennison Co.; the National Cash Register Co.; Orkin Exterminating Co., Inc.; Rohm & Hass of Tennessee, Inc.; Texas Instruments, Inc.; Velsicol Chemical Corp.; Westinghouse Electric Corp.; American Cyanamid; Central Soya of Monroe, Inc.; Mussell White Farms; Waste Management, Inc.; TRW, Inc.; ABS Industries, Inc.; Alladin Plastics, Inc.; Burton Rubber Processing, Inc.; Columbus McKinnon Corp.; Grief Brothers, Inc.; International Playing Card; Kingsport Press, Inc.; Norandex, Inc.; Ball Metal & Chemical Corp.; Tri-State Container Corp., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Richard M. Bank, Washington, D.C., John T. Milburn Rogers, Bell, Rogers, Laughlin & Nunnally, Greeneville, Tenn., Allan Kanner (argued), Paul Landeu, Arnold Levin, Laurence S. Berman, Levin & Fishbein, Philadelphia, Pa., for plaintiffs-appellants.
Richard L. Bean, Vice-President ABS Industries, Willoughby, Ohio, for ABS Industries.
Fred H. Cagle, Jr., Frantz, McConnell & Seymour, Knoxville, Tenn., for Alladin Plastics Inc.
Paul R. Leitner, Leitner, Warner, William Godbold III (argued), Chattanooga, Tenn., David Witherspoon, Knoxville, Tenn., for Westinghouse Elec.
Keith McCord, McCord, Cockrill & Weaver, P.C., Knoxville, Tenn., Ellen S. Friedell, Philadelphia, Pa., for Rohm and Haas of Tennessee, Inc.
Richard T. Sowell, Baker, Worthington, Crossley, Stansberry & Woolf, Wanda G. Sobieski (argued), Knoxville, Tenn., for Waste Resources Corp.
Wheeler A. Rosenbalm, Frantz, McConnell & Seymour, Knoxville, Tenn., for General Elec.
James W. Gentry (argued), Gentry & Boehm, Chattanooga, Tenn., for Velsicol.
John T. O'Connor, Bill Petty, Child, O'Connor & Petty, Knoxville, Tenn., for Waste Management.
William T. Wray, Jr., Hunter, Smith & Davis, Edwin L. Treadway, Gregory Haden (argued), Kingsport, Tenn., for Waste Resources of Tenn.
Allan Hull, Hull & Hull, Cleveland, Ohio, for Grief Bros.
David L. Tripp, Dykema, Gossett, Spencer, et al., Detroit, Mich., for Hayes Albion.
Michael P. O'Rourke, Corporate Office of Hoover Universal, Inc., Ann Arbor, Mich., R. Hunter Cagle, Poore, Cox, et al., Knoxville, Tenn., for Hoover Universal.
Richard M. Currie, Jr., Kingsport, Tenn., Jack McDonald, Cincinnati, Ohio, for Kingsport Press.
William A. Walker, II, Winderweedle, Haines, Ward & Woodman, Winterpark, Fla., for Mussell White Farms.
John R. Cromer, R. Davy Eaglesfield, III, Mishkin, Eaglesfield & Maher, Indianapolis, Ind., for National Cash Register.
Daniel W. Hammer, Thompson, Hine & Flory, Cleveland, Ohio, for Norandex.
Thomas J. Seeley, Jr., Erwin, Tenn., for Gary Phillips.
Jack Draper, Arnett, Draper & Hagood, Knoxville, Tenn., for Allied, American Cynamid.
G.W. Morton, Jr., John K. King, Knoxville, Tenn., Donald B. Oakley, P.C., Morristown, Tenn., for Arapahoe.
N.R. Coleman, Jr., Milligan, Coleman, Fletcher, Gaby & Kilday, Greeneville, Tenn., for Ball Metal, Central Soya, Columbus McKinnon.
Shelton B. Hillman, Jr., Gore, Hillman, Lauderback & Davenport, Bristol, Tenn., for Beecham and Orkin.
Gary L. Phillips, Gray, Tenn., for Bumpass Cove Development Corp.
Thomas C. McKee, Herndon, Coleman, Brading & McKee, Johnson City, Tenn., for Burton Rubber, Hayes Albion, IPC Dennison Co.
James H. Epps, III, Powell & Epps, Johnson City, Tenn., for Texas Instruments.
William G. Cockrill, McCord, Cockrill & Weaver, P.C., Knoxville, Tenn., for Tri-State Motor.
Noel F. Stahl, Cornelius, Collins, Higgins & White, Nashville, Tenn., Messers, Connelly & Kurent, Cleveland, Ohio, for TRW.
Before MERRITT and CONTIE, Circuit Judges and CELEBREZZE, Senior Circuit Judge.
In this class action suit, a group of residents and homeowners of Bumpass Cove in upper east Tennessee, are suing the owner, operators and users of the Bumpass Cove Landfill, a waste dumping ground near Bumpass Cove. The District Court dismissed the plaintiffs' complaint because it found that the plaintiffs had failed to adequately plead facts establishing federal subject matter jurisdiction. The court ruled that the plaintiffs had failed to plead actual notice as required to establish jurisdiction over their citizen suit claims under the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1251 et seq. and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sec. 6901 et seq., and that they could not bring suit under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sec. 9601 et seq., because that Act did not create a private cause of action. For the reasons set forth below, we affirm but remand with leave to amend on the notice issues, and reverse and remand on the private cause of action question.
The plaintiffs alleged that the environment near Bumpass Cove had been contaminated, including the water they used for drinking and household purposes, and that their health and property were threatened with serious danger as a result of the storage, use and disposal of toxic waste at the Bumpass Cove Landfill. The landfill was leased and operated by defendant Waste Resources Corporation of Tennessee. Bumpass Cove Development owned the landfill site until 1979, and the site is currently owned by defendants McDonald, Phillips and Witherspoon, who were also stockholders in Bumpass Cove Development. The defendants also include a large number of corporations which contracted to dispose of their hazardous waste at Bumpass Cove.
Plaintiffs brought a class action on behalf of essentially everyone residing or doing business near the Bumpass Cove landfill, alleging economic damage and damage to health and safety and seeking compensatory and punitive damages and injunctive and other equitable relief on a variety of state and federal theories.
The defendants moved to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Pursuant to 28 U.S.C. Sec. 636(b), the District Court referred the motion to a Magistrate, and the court on March 20, 1984, affirmed and adopted the Magistrate's recommendation dismissing the five federal counts in the plaintiffs' complaint for lack of subject matter jurisdiction and also dismissing the remaining state law counts.
Counts one and three of the plaintiffs' complaint seek damages under the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. Sec. 6901 et seq., and Federal Water Pollution Control Act (FWPCA), 33 U.S.C. Sec. 1251 et seq. The complaint apparently attempts to aver that plaintiffs have an implied private right for damages under these statutes, since it is alleged that the plaintiffs belong to the class protected by the statutes. See Appendix at 36, 38. The magistrate dismissed these counts, holding that under Middlesex City Sewerage Authority v. National Sea Clammers, 453 U.S. 1, 15, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981), the citizen suit provisions of RCRA and FWPCA are the exclusive jurisdictional avenues for private plaintiffs and have eliminated all other implied rights.
Counts two and four of the complaint ask the court to enforce the provisions of RCRA and FWPCA and base jurisdiction squarely on the respective citizen suit provisions, 42 U.S.C. Sec. 6972 and 33 U.S.C. Sec. 1365. The magistrate agreed that the injunctive relief requested in these counts was authorized by the citizen suit statutes, but dismissed the counts because he found that the plaintiffs failed to comply with the statutory notice requirements. The magistrate reasoned that Middlesex had implicitly ruled that the sixty day notice provisions in citizen suit statutes are jurisdictional prerequisites because Middlesex clearly stated that there was no general federal jurisdiction outside these provisions and left intact a lower court ruling that the sixty day notice provision was jurisdictional. See Appendix, 63. He also found that constructive notice did not comply with the statute. Plaintiffs had alleged in counts two and four that "the administrator of the EPA, the state of Tennessee and defendants have been on notice of defendants' alleged violations of the Act for a period of time exceeding 60 days, so that further notice would be meaningless," Appendix 37, 39, and stated generally that as a result of "information supplied by employees and land contractors, governmental publications and proceedings, ... and complaints from private parties ... defendants have long been aware of problems caused by the migration of hazardous materials from Waste Resources land." Appendix, 34. The magistrate found that the purpose of the notice provisions is to give state and federal agencies a chance to investigate and act, and that the constructive notice alleged by the plaintiffs suffices only when there is an allegation that an attempt to secure administrative enforcement would have been futile. Finding that no such allegation had been made, he dismissed counts two and four. Appendix, 64-66.
The final federal count seeks relief under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Sec. 9601 et seq. The plaintiffs alleged that they had "incurred necessary response costs and taken necessary abatement action consistent with the national contingency plan as a result of defendants' wrongful conduct...
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