Jones v. Inmont Corp.
Citation: 14 ELR 20485
No. No. C-1-83-1202, 584 F. Supp. 1425/20 ERC 2001/(S.D. Ohio, 04/26/1984)
The court rules that private parties may sue a private defendant under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recover hazardous waste site response costs, and under §§ 7002 and 7003 of the Resource Conservation and Recovery (RCRA) to abate an imminent hazard at an inactive waste site. The court first rules that plaintiffs have stated a claim for recovery of response costs under CERCLA § 107. CERCLA § 107(a)(4)(B) clearly gives private parties the right to sue. Defendant, as a former generator or operator, falls within the liability provisions of § 107, which applies retroactively. The damages claimed by plaintiffs, including costs for medical testing and lost use of wells, apparently fit under the broad definition of recoverable "response costs." Plaintiffs did not allege that the damages involved expenses consistent with the National Contingency Plan; however, the court rules that this requirement goes more to the recoverability of various items than to the existence of a claim for relief. Also, the court rules that future costs are recoverable, if some costs already have been incurred.
The court then rules that plaintiffs have stated a claim under RCRA § 7002, the citizen suit provisions. Defendant could not have violated RCRA §§ 3004 or 3005, as plaintiffs allege, since (1) the sections merely authorize promulgation of regulations, (2) the regulations are not retroactive, and (3) no present conduct of defendant violates the regulations. The court rules that RCRA § 4005 contains a substantive prohibition against open dumping; however, that section too is not retroactive. The court holds that plaintiffs do have a claim, though, for violation of § 7003, the imminent hazard provision. The court rules that § 7003 imposes liability on those whose past acts contribute to conditions that currently may present an imminent and substantial endangerment. The provision applies to off-site generators. Further, the provision applies to threats from current leaking of wastes, even if the leak occurs at a site dormant since before RCRA's enactment.
Counsel for Plaintiffs
D. David Altman
414 Walnut St., Suite 1006, Cincinnati OH 45202
Counsel for Defendants
Thomas T. Terp
Taft, Stettinius & Hollister
1800 First Nat'l Bank Ctr., Fountain Sq., Cincinnati OH 45202
James M. Moore
Lindhorst & Dreidame Co., I.P.A.
1200 American Bldg., Central Pkwy. at Walnut, Cincinnati OH 45202