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McGregor v. Industrial Excess Landfill, Inc.

Citation: 19 ELR 20189
No. Nos. 87-3495, -3496, 856 F.2d 39/28 ERC 1765/(6th Cir., 09/02/1988)

The court holds that listing only response costs incurred by federal and state agencies is insufficient to maintain a private claim under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107(a), and that private plaintiffs have failed to allege that the notice provision in Resource Conservation and Recovery Act (RCRA) § 7002(b)(1) has been satisfied. Plaintiffs alleged that they have suffered property damage and personal injuries as a result of contamination of the air, ground, and water supply caused by emissions from a landfill. The court first holds that plaintiffs failed to allege that they incurred any necessary costs of response for which defendants could be held liable under CERCLA § 107(a)(4)(B). Although plaintiffs' complaint states that they incurred response costs, plaintiffs dod not specify the costs they incurred or the actions they took in response to the conditions at the landfill. Only those expenditures incurred by the federal and state agencies were listed. The court next holds that the district court did not have jurisdiction to hear plaintiffs' RCRA claim, since plaintiffs did not allege that they had satisfied the notice requirement of RCRA § 7002(b)(1), which is jurisdictional. As a result, the court declines to reach the issue of whether the initiation of a remedial investigation/feasibility study by the federal and state agencies precludes plaintiffs' private injunctive suit under RCRA.

Counsel for Plaintiffs-Appellants
Thomas A. Downie
Wickens, Herzer & Panza
1144 W. Erie Ave., P.O. Box 840, Lorain OH 44052
(216) 244-5268

Counsel for Defendants-Appellants
Kathiann Kowalski
Squire, Sanders & Dempsey
1800 Huntington Bldg., Cleveland OH 44115
(216) 687-8500

Before: MERRITT and KRUPANSKY, Circuit Judges; and BROWN, Senior Circuit Judge.